1
Exhibit 4.1
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BENTON OIL AND GAS COMPANY
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, Trustee
Indenture
Dated as of May 2, 1996
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$125,000,000
11 5/8% Senior Notes Due 2003
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CROSS-REFERENCE TABLE
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TIA Sections Indenture Sections
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Sec.310(a)(1) .................................................... 5.9
(a)(2) ..................................................... 5.9
(b) ........................................................ 5.10
Sec.312(a) ....................................................... 3.6
Sec.313(c) ....................................................... 3.7; 10.4
Sec.314(a) ....................................................... 3.19;10.4
(a)(4) ..................................................... 3 5; 10.4
(c)(1) ..................................................... 10.5
(c)(2) ..................................................... 10.5
(e) ........................................................ 10.5
Sec.315(b) ....................................................... 5.6; 10.4
Sec.316(a)(1)(A) ................................................. 4.8
(a)(1)(B) .................................................. 4.9
(b) ........................................................ 4.9; 7.2
Sec.317(a)(1) .................................................... 4.2
(a)(2) ..................................................... 4.2
Sec.318(a) ....................................................... 10.7
(c) ........................................................ 10.7
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TABLE OF CONTENTS
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PARTIES ........................................................................ 1
RECITALS
Authorization of Indenture................................................................ 1
Form of Face of Security.................................................................. 1
Form of Reverse of Security............................................................... 3
Form of Trustee's Certificate of Authentication........................................... 8
Form of Transfer Notice................................................................... 8
Compliance with Legal Requirements........................................................ 11
Purpose of and Consideration for Indenture................................................ 11
ARTICLE ONE
DEFINITIONS.
SECTION 1.1. Certain Terms Defined............................................................... 11
Acquired Indebtedness............................................................... 11
Affiliate........................................................................... 11
Affiliate Transaction............................................................... 12
Agent Members....................................................................... 12
amount.............................................................................. 12
Asset Acquisition................................................................... 12
Asset Disposition................................................................... 12
Asset Sale.......................................................................... 12
Asset Sale Offer Price.............................................................. 13
Average Life........................................................................ 13
Benton-Vinccler..................................................................... 13
Board of Directors.................................................................. 13
Business Day........................................................................ 13
Capital Stock....................................................................... 13
Capitalized Lease Obligation........................................................ 13
Cash Equivalents.................................................................... 14
Change in Control................................................................... 14
Closing Date........................................................................ 15
Commission.......................................................................... 15
Commodity Swap Agreement............................................................ 15
Company............................................................................. 15
Consolidated Interest Expense....................................................... 16
Consolidated Net Income............................................................. 16
Consolidated Net Worth.............................................................. 17
Continuing Directors................................................................ 17
Convertible Debenture Indenture..................................................... 17
Corporate Trust Office.............................................................. 18
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Currency Agreement...................................................... 18
Default................................................................. 18
Depositary.............................................................. 18
Disinterested Director.................................................. 18
Disqualified Stock...................................................... 18
EBITDA.................................................................. 18
EBITDA/Interest Ratio................................................... 19
Event of Default........................................................ 19
Excess Proceeds......................................................... 19
Exchange Act............................................................ 19
Exchange Offer.......................................................... 19
Exchange Offer Registration Statement................................... 20
Exchange Securities..................................................... 20
GAAP.................................................................... 20
Global Securities....................................................... 20
guarantee............................................................... 20
Holder, holder of securities,
Securityholder........................................................ 20
Incur................................................................... 20
Indebtedness............................................................ 21
Indenture............................................................... 22
Independent Financial Advisor........................................... 22
Independent Petroleum Engineers......................................... 22
Interest Rate Agreement................................................. 22
Interest Record Date.................................................... 23
Investment.............................................................. 23
Lien.................................................................... 23
Material Subsidiary..................................................... 23
Net Cash Proceeds....................................................... 23
Net Proceeds............................................................ 24
Non-Recourse Indebtedness............................................... 24
Non-U.S. Person......................................................... 24
Officers' Certificate................................................... 24
Offshore Global Securities.............................................. 25
Offshore Physical Securities............................................ 25
Offshore Securities Exchange Date....................................... 25
Oil and Gas Business.................................................... 25
Oil and Gas Reserve Estimate............................................ 25
Opinion of Counsel...................................................... 26
Original Issue Date..................................................... 27
outstanding............................................................. 27
Performance Letter of Credit............................................ 27
Permanent Offshore Global Security...................................... 28
Permitted Benton-Vinccler
Indebtedness.......................................................... 28
Permitted Commodity Swap Agreements..................................... 28
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Permitted Company Secured
Indebtedness.......................................................... 28
Permitted Indebtedness.................................................. 28
Permitted Investment.................................................... 30
Permitted Liens......................................................... 30
Permitted Restricted Subsidiary
Indebtedness.......................................................... 31
person.................................................................. 31
Physical Securities..................................................... 31
Preferred Stock......................................................... 32
principal............................................................... 32
Private Placement Legend................................................ 32
Public Equity Offering.................................................. 32
Publicly Traded Stock................................................... 32
Redeemable Stock........................................................ 32
Reference Period........................................................ 33
Registrar............................................................... 33
Registration............................................................ 33
Registration Rights Agreement........................................... 33
Regulation S............................................................ 33
Repaid Investment....................................................... 33
Responsible Officer..................................................... 34
Restricted Payment...................................................... 34
Restricted Subsidiary................................................... 34
Restricted Subsidiary Investment........................................ 34
Rule 144A............................................................... 35
Securities Act.......................................................... 34
Security or Securities.................................................. 34
Security Register....................................................... 35
Senior Indebtedness..................................................... 35
Shelf Registration Statement............................................ 35
Stated Maturity......................................................... 35
Subordinated Indebtedness............................................... 35
Subsidiary.............................................................. 35
Temporary Offshore Global Security...................................... 36
Trustee................................................................. 36
Trust Indenture Act of 1939............................................. 36
U.S. Global Security.................................................... 36
U.S. Person............................................................. 36
U.S. Physical Securities. . ............................................ 36
Unrestricted Subsidiary................................................. 36
Vinccler Notes. . ...................................................... 37
Voting Stock............................................................ 37
Wholly Owned Subsidiary................................................. 37
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ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES.
SECTION 2.1. Authentication and Delivery of
Securities........................................................................ 37
SECTION 2.2. Execution of Securities............................................................. 38
SECTION 2.3. Certificate of Authentication....................................................... 38
SECTION 2.4. Form, Denomination and Date of
Securities; Payments of Interest.................................................. 38
SECTION 2.5. Restrictive Legends................................................................. 40
SECTION 2.6. Registration, Transfer and Exchange................................................. 42
SECTION 2.7. Book-Entry Provisions for Global
Securities........................................................................ 44
SECTION 2.8. Special Transfer Provisions......................................................... 46
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities............................................................. 50
SECTION 2.10. Cancellation of Securities;
Destruction Thereof............................................................... 52
SECTION 2.11. Temporary Securities................................................................ 52
SECTION 2.12. CUSIP and CINS Numbers.............................................................. 52
ARTICLE THREE
COVENANTS OF THE COMPANY AND THE TRUSTEE.
SECTION 3.1. Payment of Principal and Interest................................................... 53
SECTION 3.2. Offices for Payments, etc........................................................... 53
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee................................................................. 54
SECTION 3.4. Paying Agents....................................................................... 54
SECTION 3.5. Certificates to Trustee............................................................. 55
SECTION 3.6. Securityholders' Lists.............................................................. 55
SECTION 3.7. Reports by the Trustee.............................................................. 56
SECTION 3.8. Limitation on Indebtedness.......................................................... 56
SECTION 3.9. Limitation on Indebtedness of
Unrestricted Subsidiaries......................................................... 57
SECTION 3.10. Limitation on Restricted Payments................................................... 57
SECTION 3.11. Limitation on Transactions with
Affiliates........................................................................ 59
SECTION 3.12. Disposition of Proceeds of
Asset Sales....................................................................... 60
SECTION 3.13. Limitation on Liens Securing
Indebtedness...................................................................... 64
SECTION 3.14. Limitation on Conduct of Business................................................... 64
SECTION 3.15. Limitation on Dividends and Other
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Payment Restrictions Affecting
Restricted Subsidiaries........................................................... 64
SECTION 3.16. Limitation on Guarantees............................................................ 65
SECTION 3.17. Change in Control................................................................... 66
SECTION 3.18. Provision of Financial Information.................................................. 68
SECTION 3.19. Waiver of Stay, Extension or
Usury Laws........................................................................ 68
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 4.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default................................................... 69
SECTION 4.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt........................................................... 72
SECTION 4.3. Application of Proceeds............................................................. 75
SECTION 4.4. Suits for Enforcement............................................................... 76
SECTION 4.5. Restoration of Rights on Abandonment
of Proceedings................................................................... 76
SECTION 4.6. Limitations on Suits by
Securityholders.................................................................. 76
SECTION 4.7. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default.......................................................................... 77
SECTION 4.8. Control by Securityholders.......................................................... 77
SECTION 4.9. Waiver of Past Defaults............................................................. 78
ARTICLE FIVE
CONCERNING THE TRUSTEE.
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default.......................................................................... 79
SECTION 5.2. Certain Rights of the Trustee....................................................... 80
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof.................................................. 82
SECTION 5.4. Trustee and Agents May Hold
Securities; Collections, etc..................................................... 82
SECTION 5.5. Moneys Held by Trustee.............................................................. 82
SECTION 5.6. Notice of Default................................................................... 82
SECTION 5.7. Compensation and Indemnification
of Trustee and Its Prior Claim................................................... 83
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SECTION 5.8. Right of Trustee to Rely on
Officers' Certificate, etc........................................................ 83
SECTION 5.9. Persons Eligible for Appointment
as Trustee........................................................................ 84
SECTION 5.10. Resignation and Removal; Appointment
of Successor Trustee.............................................................. 84
SECTION 5.11. Acceptance of Appointment by
Successor Trustee................................................................. 85
SECTION 5.12. Merger, Conversion, Consolidation
or Succession to Business of
Trustee........................................................................... 86
SECTION 5.13. Preferential Collection of Claims................................................... 87
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
SECTION 6.1. Evidence of Action Taken by
Securityholders................................................................... 87
SECTION 6.2. Proof of Execution of Instruments and
of Holding of Securities; Record Date............................................. 88
SECTION 6.3. Securities Owned by Company Deemed Not
Outstanding....................................................................... 88
SECTION 6.4. Right of Revocation of Action Taken................................................. 89
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders........................................................ 89
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders................................................................ 91
SECTION 7.3. Effect of Supplemental Indenture.................................................... 92
SECTION 7.4. Documents to Be Given to Trustee.................................................... 92
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures........................................................... 92
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1. When Issuer May Merge, Etc.......................................................... 93
SECTION 8.2. Successor Corporation Substituted................................................... 93
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SECTION 8.3. Opinion of Counsel to Trustee....................................................... 94
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 9.1. Satisfaction and Discharge of
Indenture......................................................................... 94
SECTION 9.2. Application by Trustee of Funds
Deposited for Payment of Securities............................................... 95
SECTION 9.3. Repayment of Moneys Held by Paying
Agent............................................................................. 95
SECTION 9.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Three
Years............................................................................. 95
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Company Exempt from
Individual Liability.............................................................. 96
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders........................................................................... 96
SECTION 10.3. Successors and Assigns of Company
Bound by Indenture................................................................ 96
SECTION 10.4. Notices and Demands on Company,
Trustee and Securityholders....................................................... 96
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein.................................................................... 97
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays...................................................................... 99
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939....................................................................... 99
SECTION 10.8. New York Law to Govern.............................................................. 99
SECTION 10.9. Counterparts........................................................................ 99
SECTION 10.10. Effect of Headings.................................................................. 99
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES.
SECTION 11.1. Right of Optional Redemption; Prices................................................ 99
SECTION 11.2. Notice of Redemption; Partial
Redemptions....................................................................... 100
SECTION 11.3. Payment of Securities Called for
Redemption........................................................................ 101
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption........................................................................ 102
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE.
SECTION 12.1. Company's Option to Effect
Defeasance or Covenant Defeasance................................................. 102
SECTION 12.2. Defeasance and Discharge............................................................ 102
SECTION 12.3. Covenant Defeasance................................................................. 103
SECTION 12.4. Conditions to Defeasance or
Covenant Defeasance............................................................... 103
SECTION 12.5. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.................................................... 106
SECTION 12.6. Reinstatement....................................................................... 106
TESTIMONIUM ..................................................................................
SIGNATURES .................................................................................. 107
ACKNOWLEDGMENTS....................................................................................
EXHIBIT A. Form of Certificate to be Delivered in
Connection with Transfers to Non-QIB
Accredited Investors.............................................................. A-1
EXHIBIT B. Form of Certificate to be Delivered in
Connection with Transfers Pursuant to
Regulation S...................................................................... B-1
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THIS INDENTURE, dated as of May 2, 1996 between Benton Oil and
Gas Company, a Delaware corporation (the "Company"), and First Trust of New
York, National Association (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issue of its 11
5/8% Senior Notes Due 2003 (the "Securities") and, to provide, among other
things, for the authentication, delivery and administration thereof, the Company
has duly authorized the execution and delivery of this Indenture; and
WHEREAS, the Securities and the Trustee's certificate of
authentication shall be in substantially the following form:
[FORM OF FACE OF SECURITY]
No. $
[CUSIP][CINS]
Benton Oil and Gas Company
11 5/8% Senior Note Due 2003
Benton Oil and Gas Company, a Delaware corporation (the
"Company"), for value received hereby promises to pay to or
registered assigns the principal sum of Dollars at the Company's
office or agency for said purpose in the City of New York, on May 1, 2003, in
such coin or currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, and to pay
interest, semi-annually on May 1 and November 1 (each an "Interest Payment
Date") of each year, commencing with November 1, 1996, on said principal sum in
like coin or currency at the rate per annum set forth above at said office or
agency from the most recent Interest Payment Date to which interest on the
Securities has been paid or duly provided for, unless the date hereof is a date
to which interest on the Securities has been paid or duly provided for, in which
case from the date of this Security. Notwithstanding the foregoing, if the date
hereof is after April 15 or October 15 (each an "Interest Record Date"), as the
case may be, and before the immediately following Interest Payment Date, this
Security shall bear interest from such Interest Payment Date provided, that if
the Company shall default in the payment of interest due on such
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Interest Payment Date then this Security shall bear interest from the next
preceding Interest Payment Date to which interest on the Securities has been
paid or duly provided for. The interest so payable on any Interest Payment Date
will, except as otherwise provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Security is registered at the
close of business on the Interest Record Date preceding such Interest Payment
Date whether or not such day is a business day; provided that interest may be
paid, at the option of the Company, by mailing a check therefor payable to the
registered holder entitled thereto at such holder's last address as it appears
on the Security register or by wire transfer, in immediately available funds, to
such bank or other entity in the continental United States as shall be
designated by such holder and shall have appropriate facilities for such
purpose.
Interest, other than default interest, on the Securities will
be computed on the basis of a 360-day year consisting of twelve 30-day months.
Reference is made to the further provisions set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Security shall not be valid or obligatory until the
certificate of authentication hereon shall have been duly signed by the Trustee
acting under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
[Seal]
BENTON OIL AND GAS COMPANY
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
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[FORM OF REVERSE OF SECURITY]
Benton Oil and Gas Company
11 5/8% Senior Note Due 2003
This Security is one of a duly authorized issue of debt
securities of the Company, limited to the aggregate principal amount of
$125,000,000 (except as otherwise provided in the Indenture mentioned below),
issued or to be issued pursuant to an indenture dated as of May 2, 1996 (the
"Indenture"), duly executed and delivered by the Company to First Trust of New
York, National Association, as Trustee (herein called the "Trustee"). Reference
is hereby made to the Indenture and all indentures supplemental thereto for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the holders (the words
"holders" or "holder" meaning the registered holders or registered holder) of
the Securities.
This Security will bear interest until final maturity at a
rate per annum shown above, except as provided in the next paragraph. The
Company will pay interest on overdue principal of, premium, if any, and to the
extent lawful, interest on overdue installments of interest, at a 13 5/8% rate
per annum based on a year of 360 days and actual days elapsed.
[In the event that (i) the Exchange Offer Registration
Statement (as defined in the Indenture) relating to the Exchange Offer (as
defined in the Indenture) is not filed with the Commission (as defined in the
Indenture) on or prior to the date that is 60 days after the Closing Date (as
defined in the Indenture), (ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the date that is 90 days after the Closing
Date, or (iii) the Exchange Offer is not consummated or a Shelf Registration
Statement (as defined in the Indenture) with respect to resale of this Security
is not declared effective on or prior to the date that is 120 days after the
Closing Date, then additional interest (in addition to the interest otherwise
due hereon) ("Additional Interest") will accrue at an annual rate of 0.50%
hereon from May 1, 1996 until the Registration Date, payable in cash
semiannually, in arrears, on each May 1 and November 1, commencing November 1,
1996. "Registration Date" means the earlier of the date on which this Security
is exchanged pursuant to the Exchange Offer (or could be so exchanged) or
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the date on which there shall otherwise be an effective Registration of this
Security.](1)
[There shall also be payable in respect of this Security all
Additional Interest that may have accrued on the Security for which this
Security was exchanged (as defined in such Security) pursuant to the Exchange
Offer or otherwise pursuant to a Registration of such Security, such Additional
Interest to be payable in accordance with the terms of such Security.](2)
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all the Securities may
be declared due and payable, in the manner and with the effect, and subject to
the conditions, provided in the Indenture. The Indenture provides that in
certain events such declaration and its consequences may be waived by the
holders of a majority in aggregate principal amount of the Securities then
outstanding and that, prior to any such declaration, such holders may waive any
past default under the Indenture and its consequences except a default in the
payment of principal of or premium, if any, or interest on any of the
Securities. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Security and any Security
which may be issued in exchange or substitution herefor, whether or not any
notation thereof is made upon this Security or such other Securities.
The Indenture permits the Company and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal amount
of the Securities at the time outstanding, evidenced as in the Indenture
provided, to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
holders of the Securities; provided that no such supplemental indenture shall
(a) extend the final Maturity of any Security, or reduce the principal amount
thereof, or reduce the rate or extend the time of payment of interest thereon,
or reduce any amount payable on the redemption hereof or upon the occurrence of
an Event of Default, or reduce the Change in Control Purchase Price, as defined
in the Indenture, or the
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1 To be included in Securities not Exchange Securities.
2 To be included in Exchange Securities.
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Asset Sale Offer Price, as defined in the Indenture, or impair or affect the
rights of any Securityholder to institute suit for the payment thereof without
the consent of the holder of each Security so affected; or (b) reduce the
aforesaid percentage of Securities, the consent of the holders of which is
required for any such supplemental indenture, without the consent of the holders
of all Securities then outstanding.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Security at the place, times, and rate,
and in the currency, herein prescribed.
The Securities are issuable only as registered Securities
without coupons in denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Company referred to on the face
hereof and in the manner and subject to the limitations provided in the
Indenture, Securities may be exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
Upon due presentment for registration of transfer of this
Security at the above-mentioned office or agency of the Company, a new Security
or Securities of authorized denominations, for a like aggregate principal
amount, will be issued to the transferee as provided in the Indenture. No
service charge shall be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
The Securities may be redeemed at the option of the Company as
a whole, or from time to time in part, on any date on or after May 1, 2000, upon
mailing a notice of such redemption not less than 30 nor more than 60 days prior
to the date fixed for redemption to the holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices (expressed
in percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption:
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If redeemed during the twelve-month period beginning May 1,
Year Percentage
---- ----------
2000............................................................... 105.813%
2001............................................................... 102.906%
2002............................................................... 100.000%
provided that if the date fixed for redemption is an Interest Payment Date, then
the interest payable on such date shall be paid to the holder of record on the
next preceding Interest Record Date.
In addition, at any time prior to May 1, 1999, the Company may
redeem up to 25% of the aggregate principal amount of the Securities then
outstanding with the proceeds of a Public Equity Offering within 90 days of such
offering at a redemption price equal to 111.625% of the principal amount of such
Securities, plus accrued and unpaid interest to the redemption date; provided
that if the date fixed for redemption is an Interest Payment Date, then the
interest payable on such date shall be paid to the holder of record on the next
preceding Interest Record Date; and provided further, that at least $93.75
million in aggregate principal amount of Securities remain outstanding
immediately after giving effect to such redemption.
Subject to payment by the Company of a sum sufficient to pay
the amount due on redemption, interest on this Security (or portion hereof if
this Security is redeemed in part) shall cease to accrue upon the date duly
fixed for redemption of this Security (or portion hereof if this Security is
redeemed in part).
Upon a Change in Control (as defined in the Indenture), any
holder of Securities will have the right to cause the Company to purchase the
Securities of such holder, in whole or in part in integral multiples of
aggregate principal amount of $1,000, at a purchase price in cash equal to 101%
of the principal amount thereof plus accrued and unpaid interest, if any, to any
Change in Control Purchase Date, as provided in, and subject to the terms of the
Indenture.
The Company, the Trustee, and any authorized agent of the
Company or the Trustee, may deem and treat the registered holder hereof as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon made by
anyone other than the Company or the Trustee or any authorized agent of the
Company or the Trustee), for
6
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the purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and, subject to the provisions on the face hereof, interest
hereon and for all other purposes, and neither the Company nor the Trustee nor
any authorized agent of the Company or the Trustee shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of
or premium, if any, or the interest on this Security, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
The Indenture is hereby incorporated by the reference and to
the extent of any variance between the provisions hereof and the Indenture, the
Indenture shall control.
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By:__________________________
Authorized Officer
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
________________________________________________________________________________
Please print or typewrite name and address including zip
code of assignee
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________ attorney to transfer said Security on the
books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
PERMANENT OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring
prior to the date which is the earlier of (i) the date of an effective
Registration or (ii) three years after the later of the original issuance of
this Security or the last date on which this Security was held by the Company or
an Affiliate of the Company, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
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[Check One]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933,
as amended, provided by Rule 144A thereunder.
or
--
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished which comply
with the conditions of transfer set forth in this Security and
the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 2.8 of the Indenture shall have
been satisfied.
Date: ___________ __________________________________
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of
the within-mentioned instrument in
every particular, without
alteration or any change
whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company as the undersigned has requested pursuant to
Rule 144A or has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing representations
in order to claim the exemption from registration provided by Rule 144A.
Dated: ___________ __________________________________
NOTICE: To be executed by an
executive officer
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OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company
pursuant to Section 3.12 or Section 3.17 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by
the Company pursuant to Section 3.12 or Section 3.17 of the Indenture, state the
amount: maturity): $______________.
Date: ________________
Your Signature: ____________________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee: __________________________
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AND WHEREAS, all things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in the
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the Holders thereof, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders from
time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS.
------------
SECTION 1.1 CERTAIN TERMS DEFINED. The following terms (except
as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires), shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings given to them in
accordance with GAAP (whether or not such is indicated herein). The words
"HEREIN", "HEREOF" and "HEREUNDER" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision. The terms defined in this Article include the plural as well as the
singular.
"ACQUIRED INDEBTEDNESS" means, with respect to any person,
Indebtedness of such person (i) existing at the time such person becomes a
Restricted Subsidiary or (ii) assumed in connection with the acquisition of
assets from another person, including Indebtedness Incurred in connection with,
or in contemplation of, such person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"AFFILIATE" means, with respect to any person, any other
person directly or indirectly controlling, controlled
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by, or under common control with, such person, or any other person that owns,
directly or indirectly, 5% or more of such person's Voting Stock or any
Affiliate of any such 5% or more owner. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such person, whether through the
ownership of Voting Stock, by contract or otherwise.
"AFFILIATE TRANSACTION" has the meaning provided in Section
3.11.
"AGENT MEMBERS" has the meaning provided in Section 2.7(a).
"AMOUNT" means, (i) with respect to any Indebtedness
outstanding at any time other than Preferred Stock, the principal amount
thereof; provided that the amount of any such Indebtedness outstanding at any
time that was issued at a price less than the principal amount thereof shall
equal the amount of the liability in respect thereof at such time determined in
accordance with GAAP and (ii) with respect to any Indebtedness outstanding at
any time that is Preferred Stock, the aggregate liquidation value thereof at
such time.
"ASSET ACQUISITION" means (i) an Investment by the Company or
any Restricted Subsidiary in any other person pursuant to which such person
shall become a Restricted Subsidiary of the Company or any Restricted Subsidiary
or shall be merged into or consolidated with the Company or any Restricted
Subsidiary or (ii) an acquisition by the Company or any Restricted Subsidiary of
the assets of any person other than the Company or any Restricted Subsidiary
that constitute substantially all of a division or line of business of such
person.
"ASSET DISPOSITION" means the sale or other disposition by the
Company or any Restricted Subsidiary (other than to the Company or another
Restricted Subsidiary) of (i) all or substantially all of the Capital Stock of
any Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any Restricted
Subsidiary.
"ASSET SALE" means any conveyance, transfer, lease or other
disposition (including, without limitation, by way of any merger, consolidation
or other similar transaction),
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directly or indirectly, in one or a series of related transactions, of any
Capital Stock or Redeemable Stock of any Restricted Subsidiary (other than the
sale and issuance of directors' qualifying shares) or any other properties or
assets of the Company or any Restricted Subsidiary (other than any such
conveyance, transfer, lease or other disposition (i) that is permitted under the
provisions of Article Eight, (ii) that involves any transfer of Capital Stock,
Redeemable Stock or other property or assets of a Restricted Subsidiary to the
Company or any other Restricted Subsidiaries or of the Company to a Restricted
Subsidiary, (iii) of (1) hydrocarbon or other mineral products or (2) other
assets in an amount not to exceed $10 million in any twelve month period, in
each case in the ordinary course of business or (iv) that involves the
abandonment of any lease of non-producing acreage).
"ASSET SALE OFFER PRICE" has the meaning provided in Section
3.12.
"AVERAGE LIFE" means, as of any date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (a) the sum of
the product of (i) the number of years from such date of determination to the
date of each successive scheduled principal payment of such Indebtedness and
(ii) the amount of such principal payment by (b) the sum of all such principal
payments.
"BENTON-VINCCLER" means Benton-Vinccler, C.A.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any authorized committee of such Board.
"BUSINESS DAY" means a day which in the city (or in any of the
cities, if more than one) where amounts are payable in respect of the
Securities, as specified on the face of the form of Security recited above, is
neither a legal holiday nor a day on which banking institutions are authorized
by law or regulation to close.
"CAPITAL STOCK" means, with respect to any person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of such person's capital stock or partnership interests whether now
outstanding or issued after the date of this Indenture, except Redeemable Stock.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any
person, any obligation relating to any property (whether real, personal or
mixed) of that person as lessee which, in conformity with GAAP, is required to
be accounted
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for as a capital lease for financial reporting purposes, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH EQUIVALENTS" means, at any time, (i) any evidence of
Indebtedness with a maturity of 180 days or less issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) repurchase obligations
for investments of the type described in clause (i) for which delivery of the
investment is made against payment, (iii) demand or time deposits, bankers'
acceptances and certificates of deposit or acceptances with a maturity of 180
days or less of any financial institution that is a member of the Federal
Reserve System having combined capital and surplus and undivided profits of not
less than $300,000,000, and (iv) commercial paper with a maturity of 180 days or
less issued by a corporation (except any Affiliate of the Company or Subsidiary
of the Company) organized under the laws of any state of the United States or
the District of Columbia and rated at least A-1 by Standard & Poor's Corporation
and at least P-1 by Moody's Investors Service, Inc.
"CHANGE IN CONTROL" of the Company means the occurrence of any
of the following: (i) any "person" (as such term is used in Sections 13(d) and
14(d) (or any successor provisions) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 (or any successor
provisions) under the Exchange Act) of 50% or more of the total voting power of
the Voting Stock of the Company, (ii) there shall be consummated any
consolidation or merger of the Company (a) in which the Company is not the
continuing or surviving corporation or (b) pursuant to which the outstanding
Voting Stock of the Company would be converted into cash, securities or other
property, in each case other than a consolidation or merger of the Company in
which (1) the outstanding Voting Stock of the Company is changed into or
exchanged for Voting Stock of the continuing or surviving corporation and (2)
the holders of the Company's Voting Stock immediately prior to the consolidation
or merger own, directly or indirectly, at least a majority of the Voting Stock
of the continuing or surviving corporation immediately after the consolidation
or merger, (iii) the Company sells, transfers or otherwise disposes of all or
substantially all of its assets, (iv) the cessation of Continuing Directors for
any reason to constitute a majority of the Board of Directors then in office,
(v) so long as any Indebtedness remains outstanding under the Convertible
Debenture Indenture, a Fundamental
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Change as defined therein, (vi) the Company ceases to own on a fully diluted
basis, directly or indirectly through one or more Restricted Subsidiaries that
are Wholly Owned Subsidiaries of the Company, 51% of the outstanding Voting
Stock of Benton-Vinccler, and (vii) Benton-Vinccler, sells, transfers or
otherwise disposes of a substantial part of its assets; provided that neither of
the events described in clause (vi) or (vii) will constitute a "Change in
Control" if (x) during the four full fiscal quarters ended immediately prior to
the occurrence of such event, the EBITDA of the Company and its Restricted
Subsidiaries attributable to Benton-Vinccler, as a percentage of the EBITDA of
the Company and its Restricted Subsidiaries, was less than 20% and (y)
immediately prior to such event, the Oil and Gas Reserve Estimate of the Company
and its Restricted Subsidiaries attributable to Benton-Vinccler, as a percentage
of the Oil and Gas Reserve Estimate of the Company and its Restricted
Subsidiaries, is less than 20%. In connection with clause (vii) of this
definition, a sale, transfer or other disposition of assets of Benton-Vinccler
shall be deemed to be a sale, transfer or other disposition of a "substantial
part" of the assets of Benton-Vinccler if such assets, when added to all other
assets of Benton-Vinccler sold, transferred or otherwise disposed of (other than
the disposition of hydrocarbons or other mineral products in the ordinary course
of business) during the immediately preceding twelve months either (i) exceed
(based on the book value of all assets so sold, transferred or otherwise
disposed of during such twelve months) 25% of the net tangible assets of
Benton-Vinccler as of the end of its most recently completed full fiscal quarter
for which financial information is available determined in accordance with GAAP
or (ii) contributed more than 25% of the net income of Benton-Vinccler during
its most recently completed four full fiscal quarters for which financial
information is available determined in accordance with GAAP.
"CLOSING DATE" shall mean May 2, 1996.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act.
"COMMODITY SWAP AGREEMENT" means any commodity swap agreement
or other similar agreement or arrangement.
"COMPANY" means (except as otherwise provided in Article Five)
Benton Oil and Gas Company, a Delaware corporation, and, subject to Article
Eight, its successors and assigns.
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"CONSOLIDATED INTEREST EXPENSE" means, for any period, the
aggregate amount (without duplication) of (i) interest expense in accordance
with GAAP (including, in accordance with the following sentence, interest
attributable to Capitalized Lease Obligations and the undischarged balance of
production payments) during such period in respect of all Indebtedness of the
Company and its Restricted Subsidiaries (including (a) amortization of original
issue discount on any Indebtedness, (b) the interest portion of all deferred
payment obligations, calculated in accordance with GAAP, and (c) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptance financings and Currency Agreements, Interest Rate Agreements and
Commodity Swap Agreements, in each case to the extent attributable to such
period), and (ii) dividend requirements of the Company and its Restricted
Subsidiaries with respect to Redeemable Stock and with respect to all other
Preferred Stock of any Restricted Subsidiaries (in each case whether in cash or
otherwise (except dividends payable solely in shares of Capital Stock of the
Company or any Restricted Subsidiary)) paid, declared, accrued or accumulated
during such period, in each case to the extent attributable to such period and
excluding items eliminated in consolidation. For purposes of this definition,
(a) interest with respect to a Capitalized Lease Obligation or a production
payment shall be deemed to accrue at an interest rate reasonably determined by
the Company to be the rate of interest implicit in such Capitalized Lease
Obligation or production payment in accordance with GAAP and (b) interest
expense attributable to any Indebtedness represented by the guarantee by the
Company or a Restricted Subsidiary of an obligation of another person shall be
deemed to be the interest expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate
net income (or loss) of the Company and its Restricted Subsidiaries for such
period, on a consolidated basis, determined in accordance with GAAP; provided
that the following items shall be excluded from Consolidated Net Income (without
duplication): (i) the net income of any person in which the Company or any of
its Restricted Subsidiaries has an interest (which interest does not cause the
net income of such person to be consolidated with the net income of the Company
in accordance with GAAP) except to the extent of the amount of dividends or
distributions actually paid to the Company or its Restricted Subsidiaries by
such person in such period; (ii) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to this Indenture (and
in such case, except to the extent includible pursuant to the foregoing clause
(i)
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above), the net income (or loss) of any person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with the
Company or any of its Restricted Subsidiaries or all or substantially all of the
property and assets of such person are acquired by the Company or any of its
Restricted Subsidiaries; (iii) the net income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by such Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation; and (iv) all
extraordinary gains and losses or gains or losses attributable to Asset Sales.
If the Consolidated Net Income for any fiscal quarter of the Company includes a
ceiling limitation writedown (a "Writedown Quarter") in accordance with the full
cost accounting method rules of the Commission (such a writedown, an "Actual
Writedown") but such Actual Writedown would have been less or would not have
been required had such ceiling limitation been calculated using oil and gas
prices in effect on the last day of either of the two fiscal quarters of the
Company immediately succeeding such Writedown Quarter (such Actual Writedown, as
so recalculated, a "Hypothetical Writedown"), then Consolidated Net Income for
such Writedown Quarter, shall be increased by the amount by which such Actual
Writedown exceeds such Hypothetical Writedown; provided that in no event shall
any such increase singly, or in the case of any such increases for both quarters
immediately succeeding such Writedown Quarter, in the aggregate, exceed the
amount of such Actual Writedown).
"CONSOLIDATED NET WORTH" means, with respect to any person, as
at any date of determination, the consolidated stockholders' equity (or like
balance sheet designation) of such person as determined in accordance with GAAP.
"CONTINUING DIRECTORS" means any member of the Board of
Directors on the date of this Indenture, any director elected after the date
hereof in any annual meeting of the stockholders upon the recommendation of the
Board of Directors and any other member of the Board of Directors who is elected
to succeed a Continuing Director by a majority of Continuing Directors who are
then members of the Board of Directors.
"CONVERTIBLE DEBENTURE INDENTURE" means the Indenture dated as
of May 15, 1992 between the Company and Bank of New York.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular time,
be principally administered, which office is, at the date as of which this
Indenture is dated, located at 100 Wall Street, Suite 1600, New York, New York
10005.
"CURRENCY AGREEMENT" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Company or any Restricted Subsidiary against fluctuations in
currency values.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEPOSITARY" shall mean The Depository Trust Company, its
nominees, and their respective successors.
"DISINTERESTED DIRECTOR" means, with respect to an Affiliate
Transaction, a member of the Board of Directors who has no direct or indirect
financial interest, and whose employer has no direct or indirect financial
interest, in such Affiliate Transaction.
"DISQUALIFIED STOCK" means any Capital Stock which, 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, or
is redeemable at the option of the holder thereof, in whole or in part, on or
prior to the date on which the Securities mature.
"EBITDA" means, for any period, without duplication,
Consolidated Net Income for such period, increased (to the extent deducted in
determining Consolidated Net Income) by the sum of (i) Consolidated Interest
Expense, (ii) income taxes (other than income taxes (either positive or
negative) attributable to extraordinary and non-recurring gains or losses or
gains or losses attributable to asset sales not in the ordinary course of
business), (iii) depreciation and depletion expense, (iv) amortization expense
and (v) all other non-cash items reducing Consolidated Net Income less all
non-cash items increasing Consolidated Net Income (other than, in each case,
minority interests which shall, in all cases, be excluded from the calculation
of EBITDA) all as determined on a consolidated basis for the Company and its
Restricted Subsidiaries in conformity with GAAP.
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"EBITDA/INTEREST RATIO" means the ratio of (i) EBITDA for the
Reference Period immediately prior to the date of the transaction giving rise to
the need to calculate the EBITDA/Interest Ratio (the "Transaction Date") to (ii)
Consolidated Interest Expense for such Reference Period. In making the foregoing
calculation, (a) pro forma effect shall be given to (1) any Indebtedness
Incurred subsequent to the end of such Reference Period, (2) any Indebtedness
Incurred during such Reference Period to the extent such Indebtedness is
outstanding on the Transaction Date and (3) any Indebtedness to be Incurred on
the Transaction Date, in each case as if such Indebtedness had been Incurred on
the first day of such Reference Period and after giving effect to the
application of the proceeds thereof; (b) Consolidated Interest Expense
attributable to interest or dividends on any Indebtedness (whether existing or
being Incurred) computed on a pro forma basis and bearing a floating interest or
dividend rate shall be computed as if the rate in effect on the date of
computation (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months) had been the applicable rate for the entire period; (c) there shall
be excluded from Consolidated Interest Expense any Consolidated Interest Expense
related to any amount of Indebtedness that was outstanding during such Reference
Period or thereafter but that is not outstanding or is to be repaid on the
Transaction Date, except for Consolidated Interest Expense accrued (as adjusted
pursuant to clause (b)) during such Reference Period under a revolving credit or
similar arrangement to the extent of the commitment thereunder (or under any
successor revolving credit or similar arrangement) on the Transaction Date; and
(d) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
that occur during such Reference Period or thereafter and on or prior to the
Transaction Date as if they had occurred on the first day of such Reference
Period.
"EVENT OF DEFAULT" means any event or condition specified as
such in Section 4.1 which shall have continued for the period of time, if any,
therein designated.
"EXCESS PROCEEDS" has the meaning provided in Section 3.12.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
it may be amended and any successor act thereto.
"EXCHANGE OFFER" shall mean the exchange offer by the Company
of Exchange Securities for Securities pursuant to the Registration Rights
Agreement.
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"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a
registration statement relating to an Exchange Offer on an appropriate form and
all amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" means any securities of the Company to
be offered to Securityholders in exchange for Securities pursuant to the
Exchange Offer or otherwise pursuant to a Registration of Securities containing
terms identical to the Securities for which they are exchanged (except that (i)
interest thereon shall accrue from the last date on which interest was paid on
the Securities or, if no such interest has been paid, from the date of issuance
of the Securities and (ii) the Exchange Securities will contain the alternative
third paragraph appearing on the reverse of the Securities in the form recited
above and will not contain terms with respect to transfer restrictions.
"GAAP" means, with respect to any determination to be made
pursuant to the terms of this Indenture, such accounting principles as are
generally accepted in the United States at the time of such determination.
"GLOBAL SECURITIES" has the meaning provided in Section 2.4.
"GUARANTEE" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments for collection in
the ordinary course of business), direct or indirect, in any manner, of any part
or all of such obligation and (ii) an agreement, direct or indirect, contingent
or otherwise, the practical effect of which is to assure in any way the payment
or performance (or payment of damages in the event of non-performance) of any
part or all of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other
similar terms means the registered holder of any Security.
"INCUR" means with respect to any Indebtedness, to incur,
create, issue, assume, guarantee or otherwise become liable for or with respect
to or extend the maturity of or become responsible for, the payment of,
contingently or otherwise, such Indebtedness; provided that neither the accrual
of interest (whether such interest is payable in cash or kind) nor the accretion
of original issue discount
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shall be considered an Incurrence of Indebtedness; provided further that (i) in
the case of any Indebtedness of the Company to any Restricted Subsidiary, such
Indebtedness shall be deemed to have been Incurred by the Company for purposes
of the provisions of this Indenture described in Section 3.8 at the time such
Indebtedness is sold, transferred or otherwise disposed of by such Restricted
Subsidiary or such Restricted Subsidiary is designated as an Unrestricted
Subsidiary or otherwise ceases to be a Restricted Subsidiary, (ii) in the case
of any Indebtedness of a Restricted Subsidiary to the Company or another
Restricted Subsidiary, such Indebtedness shall be deemed to have been Incurred
by such Restricted Subsidiary for purposes of the provisions of this Indenture
described in Section 3.8 at the time such Indebtedness is sold, transferred or
otherwise disposed of by the Company or such other Restricted Subsidiary or the
Restricted Subsidiary holding such Indebtedness is designated as an Unrestricted
Subsidiary or otherwise ceases to be a Restricted Subsidiary and (iii) any
Indebtedness of an Unrestricted Subsidiary that ceases to be Non-Recourse
Indebtedness shall be deemed to have been Incurred by such Unrestricted
Subsidiary at the time of such cessation.
"INDEBTEDNESS" means, without duplication, with respect to any
person, (i) all obligations of such person (a) in respect of borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such
person or only to a portion thereof), (b) evidenced by bonds, notes, debentures
or similar instruments, (c) representing the balance deferred and unpaid of the
purchase price of any property or services (excluding accounts payable or other
obligations arising in the ordinary course of business), (d) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (e) for
the payment of money relating to a Capitalized Lease Obligation, or (f)
evidenced by a letter of credit or reimbursement obligation of such person with
respect to any letter of credit (regardless of whether such reimbursement
obligation is to the issuer of the letter of credit or another person); (ii) all
net obligations of such person under Interest Rate Agreements, Commodity Swap
Agreements and Currency Agreements; (iii) the undischarged balance of any
production payments as to which such person is obligated or its property is
dedicated; (iv) all liabilities of others of the kind described in the preceding
clause (i), (ii) or (iii) that such person has guaranteed or that are otherwise
its legal liability; (v) Indebtedness (as otherwise defined in this definition)
of others secured by a Lien on any asset of such person, whether or not such
Indebtedness is assumed by such person (provided that if the obligations so
secured
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have not been assumed in full by such person or are not otherwise such person's
legal liability in full, then such obligations shall be deemed to be in an
amount equal to the greater of (a) the lesser of (1) the full amount of such
obligations and (2) the fair market value of such asset, as determined in good
faith by the board of directors of such person, which determination shall be
evidenced by a board resolution, and (b) the amount of obligations as have been
assumed by such person or which are otherwise such person's legal liability);
and (vi) the liquidation preference and any mandatory redemption payment
obligations in respect of (a) all Redeemable Stock of such person and its
Subsidiaries and (b) all Preferred Stock of such Subsidiaries.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally recognized
investment banking firm (i) which does not (and whose directors, officers,
employees and Affiliates do not) have a direct or indirect material financial
interest in the Company and (ii) which, in the sole judgment of the Board of
Directors, is otherwise independent and qualified to perform the task for which
such firm is being engaged.
"INDEPENDENT PETROLEUM ENGINEERS" means, with respect to any
person, a nationally recognized petroleum engineering firm (i) which does not
(and whose directors, officers, employees and Affiliates do not) have a direct
or indirect material financial interest in such person and (ii) which, in the
sole judgment of the board of directors of such person, is otherwise independent
and qualified to perform the task for which such firm is being engaged.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"INTEREST PAYMENT DATE" means each semiannual interest payment
date on May 1 and November 1 of each year, commencing November 1, 1996.
"INTEREST RATE AGREEMENT" means any interest rate swap
agreement, interest rate collar agreement or other similar agreement or
arrangement designed to protect the Company or any of its Restricted
Subsidiaries against fluctuations in interest rates.
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"INTEREST RECORD DATE" for the Interest payable on any
Interest Payment Date (except a date for payment of defaulted interest) means
the April 15 or October 15 (whether or not a Business Day) as the case may be,
next preceding such Interest Payment Date.
"INVESTMENT" means, with respect to any person, any investment
in another person, whether by means of a share purchase, capital contribution,
loan, advance (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
person) or similar credit extension constituting Indebtedness of such other
person and any guarantee of obligations of any other person.
"LIEN" means any mortgage, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any
security interest).
"MATERIAL SUBSIDIARY" means, at the time of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) accounted for
more than 5% of (a) the revenues of the Company and its Restricted Subsidiaries,
on a consolidated basis, or (b) EBITDA, in each case for the most recently
completed fiscal year of the Company for which financial information is
available or (ii) owned more than 5% of the assets of the Company and its
Restricted Subsidiaries, on a consolidated basis, as at the end of such fiscal
year, all as shown on or derived from the consolidated financial statements of
the Company for such fiscal year.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents (including proceeds
from the sale of Publicly Traded Stock and payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents), net
of (i) brokerage commissions and other reasonable fees and expenses (including
fees and expenses of counsel and investment bankers) related to such Asset Sale,
(ii) provisions for all taxes payable as a result of such Asset Sale, (iii)
payments made to retire Indebtedness where payment of such Indebtedness is
required in connection with such Asset Sale, (iv) obligations and expenses
incurred in connection with the repatriation to the United States of any
proceeds of such Asset Sale, (v) in the case of any Asset Sale made by a
Restricted Subsidiary, any dividend or distribution of a portion of the proceeds
of such Asset Sale to a holder (other than the Company or another Restricted
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34
Subsidiary) of Capital Stock (other than Preferred Stock) of such Restricted
Subsidiary; provided that such dividend is paid or distribution is made
concurrently with the payment of a dividend or making of a distribution of a
portion of such proceeds by such Restricted Subsidiary to the Company or another
Restricted Subsidiary and the amount of such dividend or distribution does not
exceed such holder's pro rata share (based on such holder's percentage ownership
of the outstanding Capital Stock (other than Preferred Stock) of such Restricted
Subsidiary) of the aggregate amount of the proceeds of such Asset Sale being
dividended or distributed and (vi) appropriate amounts to be provided by the
Company or any Restricted Subsidiary, as the case may be, as a reserve, in
accordance with GAAP, against any liabilities associated with such Asset Sale
and retained by the Company or any Restricted Subsidiary, as the case may be,
after such Asset Sale, including, without limitation, pension and other
post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale.
"NET PROCEEDS" means, in the case of any sale by the Company
of Capital Stock, the aggregate net cash proceeds received by the Company, after
payment of expenses, commissions, discounts and any other transaction costs
incurred in connection therewith.
"NON-RECOURSE INDEBTEDNESS" means, with respect to any
Unrestricted Subsidiary, Indebtedness of such Unrestricted Subsidiary as to
which (i) neither the Company nor any Restricted Subsidiary (a) provides credit
support including any undertaking, agreement or instrument which would
constitute Indebtedness or (b) is directly or indirectly liable for such
Indebtedness and (ii) no default with respect to such Indebtedness (including
any rights which the holders thereof may have to take enforcement action against
such Unrestricted Subsidiary) would permit (upon notice, lapse of time or both)
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.
"NON-U.S. PERSON" means a person who is not a U.S. person, as
defined in Regulation S.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board of Directors or the President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the
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title "Vice President") and by the Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 10.5.
"OFFSHORE GLOBAL SECURITIES" has the meaning provided in
Section 2.4.
"OFFSHORE PHYSICAL SECURITIES" has the meaning provided in
Section 2.4.
"OFFSHORE SECURITIES EXCHANGE DATE" has the meaning provided
in Section 2.4.
"OIL AND GAS BUSINESS" means the exploration for and the
development, acquisition, production, processing, marketing, storage and
transportation of hydrocarbons and other related energy and natural resources
businesses and any activity necessary, appropriate or incidental to the
foregoing.
"OIL AND GAS RESERVE ESTIMATE" means, as of any date of
determination, the estimated discounted future net revenues attributable to
proved oil and gas reserves of the Company and its Restricted Subsidiaries
calculated in accordance with the Commission's guidelines (before any state or
federal income taxes) as set forth in the most recently prepared reserve report
of the Company and its Restricted Subsidiaries that has been audited by
Independent Petroleum Engineers (which report shall be prepared as of a date no
earlier than the end of the most recently completed fiscal year of the Company
for which financial information is available) (the "Audited Report"), decreased,
in the case of clause (i) below, and increased or decreased, as appropriate, in
the case of clauses (ii) and (iii) below, by the Company's petroleum engineers
to reflect, as of such date of determination, the estimated discounted future
net revenues attributable to (i) the ownership interest of any holder (other
than the Company or another Restricted Subsidiary) of Capital Stock (other than
Preferred Stock) of any Restricted Subsidiary (based on such holder's percentage
ownership of such Capital Stock as of such date of determination), but only to
the extent such ownership interest is not otherwise deducted from the discounted
future net revenues of the Company and its Restricted Subsidiaries set forth in
the Audited Report, (ii) proved oil and gas reserves acquired or disposed of
since the date of the Audited Report and (iii) increases or decreases in proved
oil and gas reserves of the Company and its Restricted Subsidiaries due to
exploration, development or
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exploitation activities or changes in geological conditions since the date of
the Audited Report; provided that such adjustments are calculated in accordance
with the Commission's guidelines by the Company's petroleum engineers utilizing
the prices utilized in, and on a basis otherwise consistent with, the Audited
Report. Notwithstanding the foregoing, (1) if the estimated discounted future
net revenues from any proved oil and gas reserves acquired since the date of the
Audited Report have been audited by Independent Petroleum Engineers and a report
with respect thereto as of a date no earlier than the end of the most recently
completed fiscal year of the person from whom such reserves were acquired has
been prepared, such report (or, if a more recent audited reserve report is
available, the most recent of such reports) shall be utilized for purposes of
calculating the adjustment to discounted future net revenues of such person
attributable to such acquired reserves, (2) if the estimated discounted future
net revenues of the Company and its Restricted Subsidiaries, as adjusted
pursuant to clauses (ii) and (iii) of the preceding sentence (excluding any
adjustments calculated pursuant to clause (1) of this sentence) would vary by
more than 10% from the discounted future net revenues of the Company and its
Restricted Subsidiaries set forth in the Audited Report, such adjustments shall
be audited by Independent Petroleum Engineers and (3) so long as Benton-Vinccler
is a Restricted Subsidiary, for purposes of calculating the Oil and Gas Reserve
Estimate of the Company and its Restricted Subsidiaries attributable to
Benton-Vinccler as of any date of determination, the proportionate share of the
Company and its Restricted Subsidiaries (based on their percentage ownership
interest of Benton-Vinccler as of such date of determination) of the estimated
discounted future net revenues attributable to the proved oil and gas reserves
subject to the operating service agreement dated as of July 31, 1992 with
Lagoven, S.A. (as amended or supplemented from time to time and including any
successor agreements or arrangements) shall be included in such Oil and Gas
Reserve Estimate on the same basis as such net revenues would be included if
such proved oil and gas reserves were owned by Benton-Vinccler.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Company or who may be
other counsel satisfactory to the Trustee. Each such opinion shall comply with
Section 314 of the Trust Indenture Act and include the statements provided for
in Section 10.5, and such others as may reasonably be requested by the Trustee,
if and to the extent required hereby.
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"ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (i) the date of such Security or (ii) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"OUTSTANDING", when used with reference to Securities, shall,
subject to the provisions of Section 6.4 and Article XII, mean, as of any
particular time, all Securities authenticated and delivered by the Trustee under
this Indenture, except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent (other
than the Company) or shall have been set aside, segregated and held in
trust by the Company (if the Company shall act as its own paying
agent), provided that if such Securities are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given
as herein provided, or provision satisfactory to the Trustee shall have
been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have been
paid, pursuant to the terms of Section 2.9 (unless proof satisfactory
to the Trustee and the Company is presented that any of such Securities
is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Company).
"PERFORMANCE LETTER OF CREDIT" means, with respect to any
person, a letter of credit or bond to secure the performance in any country of
any obligations of such person under any contract entered into in the ordinary
course of such person's Oil and Gas Business; provided that the provision of any
such letter of credit or bond is required by local law or, in the case of any
such letter of credit or bond securing the performance of obligations outside
the United States, is customarily required in connection with contracts relating
to the Oil and Gas Business in such country and, in either case, such letter of
credit or bond requires that any payment thereunder by the issuer thereof be
immediately repaid by such person.
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"PERMANENT OFFSHORE GLOBAL SECURITY" has the meaning provided
in Section 2.4.
"PERMITTED BENTON-VINCCLER INDEBTEDNESS" means Indebtedness of
Benton-Vinccler in an aggregate amount not to exceed $25 million at any time
outstanding.
"PERMITTED COMMODITY SWAP AGREEMENTS" means Commodity Swap
Agreements entered into in order to protect the Company or its Restricted
Subsidiaries against fluctuations in oil or gas prices with respect to their
current or good faith estimated future oil and gas production irrespective of
whether such production is owned by the Company or a Restricted Subsidiary or is
produced by the Company or a Restricted Subsidiary pursuant to an arrangement
under which the Company or a Restricted Subsidiary acts as a contractor for a
third party that owns such production.
"PERMITTED COMPANY SECURED INDEBTEDNESS" means secured
Indebtedness of the Company Incurred after the date of this Indenture (other
than pursuant to clause (xi) of the definition of Permitted Indebtedness) in an
aggregate amount not to exceed $20 million outstanding at any time less the
aggregate amount of Permitted Restricted Subsidiary Indebtedness outstanding at
such time.
"PERMITTED GEOILBENT INDEBTEDNESS" means Indebtedness of
GEOILBENT which is non-recourse to the Company and its Restricted Subsidiaries
except to the extent of the pledge of equity interests in GEOILBENT.
"PERMITTED INDEBTEDNESS" means (i) the Securities; (ii)
Indebtedness of the Company (other than the Vinccler Notes) and its Restricted
Subsidiaries (other than Benton-Vinccler) outstanding on the date of this
Indenture; (iii) obligations of the Company and its Restricted Subsidiaries
pursuant to Interest Rate Agreements, Currency Agreements and Permitted
Commodity Swap Agreements and compensation payable thereunder; (iv) Indebtedness
of the Company to a Restricted Subsidiary or of a Restricted Subsidiary to the
Company or another Restricted Subsidiary (but only so long as such Indebtedness
is held or owned by the Company or a Restricted Subsidiary); (v) Indebtedness of
the Company Incurred for the purpose of financing the working capital
requirements of the Company or any Restricted Subsidiary in an aggregate amount
not to exceed the greater of $10 million or 4% of the Oil and Gas Reserve
Estimate, in each case at any time outstanding; (vi) Indebtedness (excluding
Acquired Indebtedness) of the Company in addition to Indebtedness permitted by
clauses (i) through (v) in an aggregate amount
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not to exceed $20 million at any time outstanding; (vii) (a) Indebtedness of
Benton-Vinccler not in excess of $25 million in aggregate principal amount
outstanding which is cash collateralized and (b) Permitted Benton-Vinccler
Indebtedness; (viii) Permitted GEOILBENT Indebtedness; (ix)(a) one or more
letters of credit having an aggregate face amount not exceeding $18 million
issued in support of performance obligations in respect of the Delta Centro
block in Venezuela and (b) Performance Letters of Credit with respect to which
the account party is the Company or any Restricted Subsidiary; provided that the
reimbursement obligation of the Company or such Restricted Subsidiary thereunder
is unsecured; (x) unsecured obligations of the Company or any Restricted
Subsidiary to reimburse any other person for all or a portion of such other
person's reimbursement obligations with respect to any Performance Letter of
Credit; provided that such Performance Letter of Credit secures the performance
of obligations of the Company or a Restricted Subsidiary (in addition to any
performance obligations of such other person which such Performance Letter of
Credit may secure) under any contract entered into by the Company or such
Restricted Subsidiary in the ordinary course of its Oil and Gas Business; (xi)
the Vinccler Notes; and (xii) Indebtedness of the Company or any Restricted
Subsidiary the proceeds of which are used to renew, extend, refinance or
repurchase, or Indebtedness of the Company or any Restricted Subsidiary
exchanged for, Indebtedness permitted by clause (i) or (ii) above so long as (a)
the aggregate amount of such new Indebtedness (or, if such new Indebtedness will
be issued at a price less than the principal amount thereof, the aggregate issue
price thereof) would not be greater than the sum of the aggregate amount of the
Indebtedness being renewed, extended, refinanced, repurchased or exchanged and
any premium, accrued interest expense, commissions and other transaction costs
incurred in connection with such renewal, extension, refinancing, repurchase or
exchange (but only if such costs are of a kind and in an amount that would
customarily be incurred in connection with such types of transactions), (b) if
the Indebtedness being renewed, extended, refinanced, repurchased or exchanged
is Indebtedness of the Company, such new Indebtedness would be Indebtedness of
the Company and, unless the Indebtedness being renewed, extended, refinanced,
repurchased or exchanged is fully secured, such new Indebtedness would have an
Average Life greater than the Average Life of the Securities and a stated
maturity later than the Stated Maturity of the Securities and (c) such new
Indebtedness would be Subordinated Indebtedness if the Indebtedness renewed,
extended, refinanced, repurchased or exchanged is Subordinated Indebtedness and
such new Subordinated Indebtedness would be subordinated to the
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Securities at least to the extent that the Subordinated Indebtedness being
renewed, extended, refinanced, repurchased or exchanged is subordinated to the
Securities.
"PERMITTED INVESTMENT" means investments and expenditures made
in the ordinary course of, and of a nature that is or shall have become
customary in, the Oil and Gas Business as means of actively exploiting,
exploring for, acquiring, developing, processing, gathering, marketing or
transporting oil and gas through agreements, transactions, interests or
arrangements which permit a person to share risks or costs, comply with
regulatory requirements regarding local ownership or satisfy other objectives
customarily achieved through the conduct of the Oil and Gas Business jointly
with third parties, including, without limitation, (i) ownership interests in
oil and gas properties or gathering systems and (ii) Investments and
expenditures in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements,
area of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts, joint venture
agreements, partnership agreements (whether general or limited), subscription
agreements, stock purchase agreements and other similar agreements with third
parties (including Unrestricted Subsidiaries).
"PERMITTED LIENS" means Liens upon any real or tangible
personal property securing (i) any Indebtedness of the Company or any Restricted
Subsidiary existing on the date of this Indenture and any renewals, extensions,
refinancings or exchanges of such Indebtedness permitted under this Indenture;
provided that any such Lien securing any renewed, extended, refinanced or
exchanged Indebtedness shall only attach to the property that secured such
Indebtedness prior to such renewal, extension, refinancing or exchange; (ii) any
Permitted Benton-Vinccler Indebtedness; (iii) any Permitted GEOILBENT
Indebtedness, limited to the non-recourse pledge of equity interests in
GEOILBENT; (iv) any Permitted Restricted Subsidiary Indebtedness; (v) any
Permitted Company Secured Indebtedness; (vi) any Permitted Commodity Swap
Agreements; (vii) reimbursement obligations in respect of the letters of credit
referred to in clause (ix)(a) of the definition of Permitted Indebtedness;
(viii) Indebtedness of Benton-Vinccler referred to in clause (vii)(a) of the
definition of Permitted Indebtedness, limited to cash collateral; and (ix) any
other Indebtedness of the Company or any Restricted Subsidiary required by its
terms to be secured in the event that the Securities are required to be secured
pursuant to the terms of this Indenture; provided that (a) if such other
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Indebtedness is Subordinated Indebtedness, the Lien securing such other
Indebtedness shall be subordinated to the Lien securing the Securities to at
least the extent that such Subordinated Indebtedness is subordinated to the
Securities, (b) in no event shall the Lien securing such other Indebtedness be
prior to the Lien securing the Securities and (c) if the Lien securing the
Securities ceases to exist, the Lien securing such other Indebtedness shall also
cease to exist.
"PERMITTED RESTRICTED SUBSIDIARY INDEBTEDNESS" means
Indebtedness of any Restricted Subsidiary (including Permitted Benton-Vinccler
Indebtedness but excluding Indebtedness of Benton-Vinccler referred to in clause
(vii)(a) of the definition of Permitted Indebtedness) Incurred after the date of
this Indenture (other than pursuant to clause (xii) of the definition of
Permitted Indebtedness) in an aggregate amount for all such Restricted
Subsidiaries not to exceed $20 million, in each case outstanding at any time
less the aggregate amount of Permitted Company Secured Indebtedness outstanding
at such time.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof; provided that the term joint venture shall not include any contractual
arrangement between the Company or any Restricted Subsidiary and one or more
third parties pursuant to which the Company or such Restricted Subsidiary and
such third party or parties agree to share the costs and benefits of exploring
and developing oil and gas properties so long as (i) the interest of the Company
or such Restricted Subsidiary in such properties and the hydrocarbons or other
mineral products derived therefrom is owned directly by the Company or such
Restricted Subsidiary, (ii) such contractual arrangement does not grant any Lien
on the Company's or such Restricted Subsidiary's ownership interest in such
properties or products derived therefrom or permit such third party or parties
to restrict in any manner the ability of the Company or such Restricted
Subsidiary to use, transfer, sell or otherwise dispose of such ownership
interest (excluding, in each case, any agreement to sell such products to such
third party or parties so long as such agreement was negotiated on an
arm's-length basis) and (iii) no independent legal entity is created by such
contractual arrangement.
"PHYSICAL SECURITIES" has the meaning provided in
Section 2.4.
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"PREFERRED STOCK" means, with respect to any person, Capital
Stock or Redeemable Stock of such person of any class or classes (however
designated) whether now outstanding or issued after the date of this Indenture,
that ranks prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation of such person, to any
other class of Capital Stock of such person and includes, without limitation,
all classes and series of preferred or preference stock.
"PRINCIPAL" wherever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium, if
any".
"PRIVATE PLACEMENT LEGEND" means the legend initially set
forth on the Securities in the form set forth in Section 2.5(a).
"PUBLIC EQUITY OFFERING" means an underwritten primary public
offering of Capital Stock of the Company pursuant to an effective registration
statement under the Securities Act, other than an offering of Disqualified Stock
or an offering pursuant to a registration statement on Form S-8.
"PUBLICLY TRADED STOCK" means, with respect to any person,
Voting Stock of such person which is registered under Section 12 of the Exchange
Act and which is actively traded on The New York Stock Exchange or American
Stock Exchange or in the NASDAQ-National Market.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"REDEEMABLE STOCK" means, with respect to any person, any and
all shares, interests, participations, rights or other equivalents (however
designated) of such person's capital stock or partnership interests whether now
outstanding or issued after the date of this Indenture that by their terms or
otherwise are or may be required to be redeemed prior to the Stated Maturity of
the Securities or are redeemable at the option of the holder thereof (including,
without limitation, upon the happening of any specified event or with the
passage of time) at any time prior to the Stated Maturity of the Securities;
provided that if the only event that could require redemption of any such
securities prior to the Stated Maturity of the Securities is a change in control
of the Company (defined in a manner substantially identical to the definition of
Change in Control in this Indenture) and such right of redemption is expressly
subordinated to the right of the holders of the
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43
Securities to require repurchase of the Securities upon the occurrence of a
Change in Control pursuant to the terms of this Indenture, then such securities
shall not be deemed to be Redeemable Stock.
"REFERENCE PERIOD" means, with respect to any determination to
be made pursuant to the terms of this Indenture, the four full fiscal quarters
for which financial information is available immediately preceding any date upon
which such determination is to be made.
"REGISTRAR" has the meaning provided in Section 2.6.
"REGISTRATION" means a registered exchange offer for the
Securities by the Company or other registration of the Securities under the
Securities Act pursuant to and in accordance with the terms of the Registration
Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of May 2, 1996, between the Company and J.P. Morgan
Securities Inc., and certain permitted assigns specified therein.
"REGISTRATION STATEMENT" means the Registration Statement
pursuant to and as defined in the Registration Rights Agreement.
"REGULATION S" means Regulation S under the Securities Act.
"REPAID INVESTMENT" means (i) the amount of any Investment in
a person (which is a Restricted Payment) made by the Company or a Restricted
Subsidiary after the date of this Indenture (a) to the extent such amount has
been unconditionally repaid in cash to the Company or such Restricted Subsidiary
(including any such repayment in the form of a dividend but excluding any
payments of interest) or (b) to the extent of the net proceeds in cash or Cash
Equivalents from the sale thereof and (ii) the amount of any Indebtedness of a
person guaranteed by the Company or a Restricted Subsidiary after the date of
this Indenture (which guarantee is a Restricted Payment) to the extent such
amount has been unconditionally released from such guarantee; provided that in
each case such amount shall not exceed the amount of such Investment as recorded
on the books of the Company or such Restricted Subsidiary in accordance with
GAAP at the time such Investment was made.
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"RESPONSIBLE OFFICER" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any vice
president (whether or not designated by numbers or words added before or after
the title "vice president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with the particular subject.
"RESTRICTED PAYMENT" means, with respect to any person, (i)
the declaration or payment of any dividend or other distribution in respect of
Capital Stock or Redeemable Stock of such person or any Subsidiary of such
person, (ii) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Capital Stock or Redeemable Stock of such
person or any Subsidiary of such person (including options, warrants or other
rights to acquire such Capital Stock or Redeemable Stock), (iii) any payment on
account of the purchase, redemption or other acquisition or retirement for value
of, or any payment in respect of any amendment of the terms of, or any
defeasance of, any Subordinated Indebtedness, directly or indirectly, by such
person or a Subsidiary of such person prior to the scheduled maturity, any
scheduled repayment of principal or any scheduled sinking fund payment, as the
case may be, of such Subordinated Indebtedness and (iv) any Investment by such
person other than any Investment in Cash Equivalents or any Permitted
Investment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company
other than an Unrestricted Subsidiary; provided that so long as Benton-Vinccler
is a direct or indirect Subsidiary of the Company it shall remain a Restricted
Subsidiary.
"RESTRICTED SUBSIDIARY INVESTMENT" means, with respect to any
person that becomes a Restricted Subsidiary, the amount of any Investment in
such person (which is a Restricted Payment) made by the Company or a Restricted
Subsidiary after the date of this Indenture but prior to the time such person
becomes a Restricted Subsidiary; provided that such amount shall not exceed the
amount of such Investment as recorded on the books of the Company or such
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45
Restricted Subsidiary in accordance with GAAP at the time such Investment was
made.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as it may
be amended and any successor act thereto.
"SECURITY" or "SECURITIES" means any Security or Securities,
as the case may be, authenticated and delivered under this Indenture. For all
purposes of this Indenture, the term "Securities" shall include any Exchange
Securities to be issued and exchanged for any Securities pursuant to the
Registration Rights Agreement and this Indenture and, for purposes of this
Indenture, all Securities and Exchange Securities shall vote together as one
series of Securities under this Indenture.
"SECURITY REGISTER" has the meaning provided in Section 2.6.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company
(whether outstanding on the date hereof or hereinafter incurred), unless such
Indebtedness is Subordinated Indebtedness.
"SHELF REGISTRATION STATEMENT" shall mean a Shelf Registration
Statement of the Company pursuant to and as defined in the Registration Rights
Agreement.
"STATED MATURITY," when used with respect to any Security,
means the date specified in such Security as the fixed date on which the
principal of such Security is due and payable.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness (whether
outstanding on the date hereof or hereinafter incurred) which is subordinate or
junior in right of payment to the Securities.
"SUBSIDIARY" of any person means (i) a corporation a majority
of whose Voting Stock is at the time, directly or indirectly, owned by such
person, by one or more Subsidiaries of such person or by such person and one or
more Subsidiaries of such person or (ii) any other person (other than a
corporation) in which such person, directly or indirectly, at the date of
determination thereof, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
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"TEMPORARY OFFSHORE GLOBAL SECURITY" has the meaning provided
in Section 2.4.
"TRUSTEE" means the entity identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article Five, shall
also include any successor trustee.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of
1939, as amended, as in force at the date as of which this Indenture was
originally executed, and "TIA", when used in respect of an indenture
supplemental hereto, means such Act as in force at the time such indenture
supplemental hereto becomes effective.
"U.S. GLOBAL SECURITY" has the meaning provided in Section
2.4.
"U.S. PERSON" has the meaning provided in Section 2.5.
"U.S. PHYSICAL SECURITIES" has the meaning provided in Section
2.4.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the
Company or of a Restricted Subsidiary (other than Benton-Vinccler) that is
designated as an Unrestricted Subsidiary by a resolution adopted by the Board of
Directors in accordance with the requirements of the following sentence and (ii)
any Subsidiary of an Unrestricted Subsidiary. The Company may designate any
Subsidiary of the Company or of a Restricted Subsidiary (excluding any
Restricted Subsidiary that had been designated as an Unrestricted Subsidiary
prior to its designation as a Restricted Subsidiary but including a newly
acquired or newly formed Subsidiary of the Company or any Restricted Subsidiary)
to be an Unrestricted Subsidiary by a resolution of the Board of Directors, if
immediately after giving effect to such designation, (i) the Company could Incur
at least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 3.8 of this Indenture, (ii) the Company could make an
additional Restricted Payment of $1.00 pursuant to the first paragraph of
Section 3.10 of this Indenture, (iii) such Subsidiary does not own or hold any
Capital Stock or Redeemable Stock of, or any Lien on any property of, the
Company or any Restricted Subsidiary and (iv) such Subsidiary is not liable,
directly or indirectly, with respect to any Indebtedness other than Non-Recourse
Indebtedness. The Board of Directors may designate any Unrestricted Subsidiary
(excluding any Unrestricted Subsidiary that had been a Restricted Subsidiary
prior to its designation as an Unrestricted Subsidiary) to be a
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Restricted Subsidiary; provided that, immediately after giving effect to such
designation, the Company could Incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 3.8 of this Indenture.
Upon any such designation by the Board of Directors, the Company shall promptly
file with the Trustee a copy of a board resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing.
"VINCCLER NOTES" means the promissory notes in an aggregate
original principal amount equal to $10 million issued to Vinccler, C.A. by the
Company and guaranteed by Benton-Vinccler.
"VOTING STOCK" means, with respect to any person, securities
of any class or classes of Capital Stock in such person entitling the holders
thereof (whether at all times or only so long as no senior class of stock has
voting power by reason of any contingency) to vote in the election of members of
the board of directors or other governing body of such person but not including
Capital Stock having the right to vote thereon solely upon the happening of a
contingency unless and until such contingency has occurred, and then only so
long as such Capital Stock has voting rights with respect thereto.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any person,
any Subsidiary of such person if all of the Capital Stock (excluding Preferred
Stock) in such Subsidiary (other than any director's qualifying shares) is owned
directly or indirectly by such person.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES.
---------------------------
SECTION 2.1 AUTHENTICATION AND DELIVERY OF SECURITIES. Upon
the execution and delivery of this Indenture, or from time to time thereafter,
Securities (including Exchange Securities) in an aggregate principal amount not
in excess of the amount specified in the form of Security hereinabove recited
(except as otherwise provided in Section 2.9) may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by both (a) its Chairman of the Board of Directors, or any Vice
Chairman of the Board of Directors, or its President or any Vice
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President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President") and (b) by its Treasurer or
any Assistant Treasurer without any further action by the Company.
SECTION 2.2 EXECUTION OF SECURITIES. The Securities shall be
signed on behalf of the Company by both (a) its Chairman of the Board of
Directors or any Vice Chairman of the Board of Directors or its President or any
Vice President (whether or not designated by a number or numbers or a word or
words added before or after the title "Vice President") and (b) by its Treasurer
or any Assistant Treasurer or its Secretary or any Assistant Secretary, under
its corporate seal which may, but need not, be attested. Such signatures may be
the manual or facsimile signatures of the present or any future such officers.
The seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security which has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any
of the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Company, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Company; and any Security may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Company, although at the date of
the execution and delivery of this Indenture any such person was not such
officer.
SECTION 2.3 CERTIFICATE OF AUTHENTICATION. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinabove recited, executed by the Trustee by manual signature of
one of its authorized officers, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.4 FORM, DENOMINATION AND DATE OF SECURITIES;
PAYMENTS OF INTEREST. The Securities and the
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Trustee's certificates of authentication shall be substantially in the form
recited above; provided that Exchange Securities (i) shall contain the
alternative third paragraph appearing on the reverse of the Securities in the
form recited above and (ii) shall not contain terms with respect to transfer
restrictions. The Securities shall be issuable in denominations provided for in
the form of Security recited above. The Securities shall be numbered, lettered,
or otherwise distinguished in such manner or in accordance with such plans as
the officers of the Company executing the same may determine with the approval
of the Trustee.
Any of the Securities may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, including those required by Section
2.5, or with the rules of any securities market in which the Securities are
admitted to trading, or to conform to general usage.
Each Security shall be dated the date of its authentication,
shall bear interest from the applicable date and shall be payable on the dates
specified on the face of the form of Security recited above.
Securities offered and sold in reliance on Section 4(2) and
Rule 144A shall be issued initially in the form of a single permanent global
Security in registered form, substantially in the form hereinabove recited (the
"U.S. GLOBAL SECURITY"), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Company and authenticated by the Trustee as
herein provided. The aggregate principal amount of the U.S. Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of a single
temporary global Security in registered form substantially in the form
hereinabove recited (the "TEMPORARY OFFSHORE GLOBAL SECURITY") deposited with
the Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as provided herein. At any time on and after June
12, 1996 (the "OFFSHORE SECURITIES EXCHANGE DATE"), a single permanent global
Security in registered form substantially in the form hereinabove recited
without the Private
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Placement Legend (the "PERMANENT OFFSHORE GLOBAL SECURITY"; and together with
the Temporary Offshore Global Security, the "OFFSHORE GLOBAL SECURITIES") duly
executed by the Company and authenticated by the Trustee as provided herein
shall be deposited with the Trustee, as custodian for the Depositary, and the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Temporary Offshore Global Security in an amount equal to
the principal amount of the beneficial interest in the Temporary Offshore Global
Security transferred.
Securities offered and sold in reliance on Regulation D under
the Securities Act shall be issued in the form of permanent certificated
Securities in registered form in substantially the form hereinabove recited (the
"U.S. PHYSICAL SECURITIES"). Securities issued pursuant to Section 2.7 in
exchange for interests in the Offshore Global Security following the Offshore
Securities Exchange Date shall be in the form of permanent certificated
Securities in registered form substantially in the form hereinabove recited (the
"OFFSHORE PHYSICAL SECURITIES").
The Offshore Physical Securities and U.S. Physical Securities
are sometimes collectively herein referred to as the "PHYSICAL SECURITIES". The
U.S. Global Security and the Offshore Global Security are sometimes referred to
herein as the "GLOBAL SECURITIES".
The person in whose name any Security is registered at the
close of business on any Interest Record Date with respect to any Interest
Payment Date shall be entitled to receive the interest, if any, payable on such
Interest Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the Interest Record Date and prior to such Interest Payment Date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, shall be paid to the persons in whose names outstanding Securities are
registered at the close of business on a subsequent record date (which shall be
not less than five business days prior to the date of such payment) established
by notice given by mail by or on behalf of the Company to the holders of
Securities not less than 15 days preceding such subsequent record date.
SECTION 2.5 RESTRICTIVE LEGENDS. (a) Unless and until a
Security is exchanged for an Exchange Security in connection with an effective
Registration pursuant to the Registration Rights Agreement, the U.S. Global
Security,
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Temporary Offshore Global Security and each U.S. Physical Security shall bear
the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MANY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT), (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS
NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION, (2) AGREES THAT IT WILL NOT, WITHIN THREE YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B)
INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES OF LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS SECURITY WITHIN THREE YEARS AFTER THE ORIGINAL
ISSUANCE OF THE SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE
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TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE 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. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Security, whether or not an Exchange Security,
shall also bear the following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, 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 TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE 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 CEDE & CO. 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 SECTION 2.8 OF THE INDENTURE.
SECTION 2.6 REGISTRATION, TRANSFER AND EXCHANGE. The
Securities are issuable only in registered form. The
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Company will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 (the "Registrar") a register or registers (the "Security
Register(s)") in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in
this Article provided. Such Security Register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such Security Register or
Security Registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any
Security at each such office or agency, the Company shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Security or Securities in authorized denominations for a like
aggregate principal amount.
A Holder may transfer a Security only by written application
to the Registrar stating the name of the proposed transferee and otherwise
complying with the terms of this Indenture. No such transfer shall be effected
until, and such transferee shall succeed to the rights of a Holder only upon,
final acceptance and registration of the transfer by the Registrar in the
Security Register. Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee, and any agent of the Company shall
treat the person in whose name the Security is registered as the owner thereof
for all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary. Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book entry system maintained by
the Holder of such Global Security (or its agent) and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry. When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer or to exchange them for an equal principal
amount of Securities of other authorized denominations (including an exchange of
Securities for Exchange Securities), the Registrar shall register the transfer
or make the exchange as requested if the requirements for such transactions set
forth herein are met; provided that no exchanges of Securities for Exchange
Securities shall occur until a Registration Statement shall have been declared
effective by the Commission and that any Securities that are exchanged for
Exchange Securities shall be cancelled by the Trustee. To permit registrations
of
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transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request.
The Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities (other than any such transfer
taxes or other similar governmental charge payable upon exchanges pursuant to
Section 2.11, 7.5 or 11.2). No service charge to any Holder shall be made for
any such transaction.
The Company shall not be required to exchange or register a
transfer of (a) any Securities for a period of 15 days next preceding the first
mailing of notice of redemption of Securities to be redeemed, or (b) any
Securities selected, called or being called for redemption except, in the case
of any Security where public notice has been given that such Security is to be
redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.7. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES. (a)
The U.S. Global Security and Offshore Global Security initially shall (i) be
registered in the name of the Depositary for such Global Securities or the
nominee of such Depositary, (ii) be delivered to the Trustee as custodian for
such Depositary and (iii) bear legends as set forth in Section 2.5.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary 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 Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a holder of any
Security.
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(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.8. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Security or the Offshore Global Security, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Security or the Offshore Global Security, as the case may
be, and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default of which the Trustee has actual notice
has occurred and is continuing and the Registrar has received a request from the
Depositary to issue such Physical Securities.
(c) Any beneficial interest in one of the Global Securities
that is transferred to a person who takes delivery in the form of an interest in
the other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the
beneficial interests in the U.S. Global Security to beneficial owners pursuant
to paragraph (b) of this Section and Section 2.8(a)(ii), the Registrar shall
reflect on its books and records the date and a decrease in the principal amount
of the U.S. Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and the
Company shall execute, and the Trustee shall authenticate and deliver, one or
more U.S. Physical Securities of like tenor and amount.
(e) In connection with the transfer of the entire U.S. Global
Security or Offshore Global Security to beneficial owners pursuant to paragraph
(b) of this Section, the U.S. Global Security or Offshore Global Security, as
the case may be, shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the U.S. Global Security or Offshore Global
Security, as the case may be, an equal
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aggregate principal amount of U.S. Physical Securities or Offshore Physical
Securities, as the case may be, of authorized denominations.
(f) Any U.S. Physical Security delivered in exchange for an
interest in the U.S. Global Security pursuant to paragraph (b) or (d) of this
Section shall, except as otherwise provided by paragraph (f) of Section 2.8,
bear the legend regarding transfer restrictions applicable to the U.S. Physical
Security set forth in Section 2.5.
(g) Any Offshore Physical Security delivered in exchange for
an interest in the Offshore Global Security pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (f) of Section 2.8,
bear the legend regarding transfer restrictions applicable to the Offshore
Physical Security set forth in Section 2.5.
(h) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
SECTION 2.8. SPECIAL TRANSFER PROVISIONS. Unless and until a
Security is exchanged for an Exchange Security in connection with an effective
Registration pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS.
The following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Security,
whether or not such Security bears the Private Placement Legend, if (x)
the requested transfer is at least three years after the Original Issue
Date of the Securities or (y) the proposed transferee has delivered to
the Registrar (A) a certificate substantially in the form of Exhibit A
hereto and (B) if the principal amount of the Securities being
transferred is less than $250,000 at the time of such transfer, an
opinion of counsel acceptable to the Company that such transfer is in
compliance with the Securities Act.
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(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Certificates of like tenor and
amount.
(b) TRANSFERS TO QIBS. The following provisions shall apply
with respect to the registration of any proposed transfer of a U.S. Physical
Security or an interest in the U.S. Global Security to a QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of (x) U.S.
Physical Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised
the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (y) an interest in
the U.S. Global Security, the transfer of such interest may be effected
only through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall
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reflect on its books and records the date and an increase in the
principal amount of the U.S. Global Security in an amount equal to the
principal amount of the U.S. Physical Securities to be transferred and
the Trustee shall cancel the U.S. Physical Security so transferred.
(c) TRANSFERS OF INTERESTS IN THE TEMPORARY OFFSHORE GLOBAL
SECURITY. The following provisions shall apply with respect to registration of
any proposed transfer of interests in the Temporary Offshore Global Security:
(i) The Registrar shall register the transfer of any Security
(x) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit B hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance of Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Registrar of the documents referred to in clause (i)(y)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
U.S. Global Security, in an amount equal to the principal amount of the
Temporary Offshore Global Security to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Security in
a like amount.
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(d) TRANSFERS OF INTERESTS IN THE PERMANENT OFFSHORE GLOBAL
SECURITY OR OFFSHORE PHYSICAL SECURITIES TO U.S. PERSONS. The following
provisions shall apply with respect to any transfer of interests in the
Permanent Offshore Global Security or Offshore Physical Securities to U.S.
Persons: The Registrar shall register the transfer of any such Security without
requiring any additional certification.
(e) TRANSFERS TO NON-U.S. PERSONS AT ANY TIME. The following
provisions shall apply with respect to any transfer of a Security to a Non-U.S.
Person:
(i) Prior to June 12, 1996, the Registrar shall register any
proposed transfer of a Security to a Non-U.S. Person upon receipt of a
certificate substantially in the form of Exhibit B hereto from the
proposed transferor.
(ii) On and after June 12, 1996, the Registrar shall register
any proposed transfer to any Non-U.S. Person if the Security to be
transferred is a U.S. Physical Security or an interest in the U.S.
Global Security, upon receipt of a certificate substantially in the
form of Exhibit B from the proposed transferor.
(iii)(a) If the proposed transferor is an Agent Member holding
a beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(b) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Offshore Global Security in an amount equal to the principal amount of
the U.S. Physical Securities or the U.S. Global Security, as the case
may be, to be transferred, and the Trustee shall cancel the Physical
Security, if any, so transferred or decrease the amount of the U.S.
Global Security, as the case may be.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the
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Private Placement Legend, the Registrar shall deliver Securities that do not
bear the Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless either (i) the
circumstances contemplated by the fifth paragraph of Section 2.4 or paragraphs
(a)(i)(x) or (e)(ii) of this Section 2.8 exists or (ii) there is delivered to
the Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related restrictions
on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(g) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture. The Registrar shall not register a transfer of any
Security unless such transfer complies with the restrictions on transfer of such
Security set forth in this Indenture. In connection with any transfer of
Securities, each Holder agrees by its acceptance of the Securities to furnish
the Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.7 or this Section
2.8. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN
SECURITIES. In case any temporary or definitive Security shall become mutilated,
defaced or be apparently destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and deliver, a new Security, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated
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or defaced Security, or in lieu of and substitution for the Security so
apparently destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Company and to the Trustee and any
agent of the Company or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft evidence to their satisfaction of
the apparent destruction, loss or theft of such Security and of the ownership
thereof.
Upon the issuance of any substitute Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature, or has been called for redemption in
full, shall become mutilated or defaced or be apparently destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as any of them may require to save each of
them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security issued pursuant to the provisions of
this Section by virtue of the fact that any Security is apparently destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the apparently destroyed, lost or stolen Security shall
be at any time enforceable by anyone and shall be entitled to all the benefits
of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, or apparently destroyed, lost or stolen Securities and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with
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respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10 CANCELLATION OF SECURITIES; DESTRUCTION THEREOF.
All Securities surrendered for payment, redemption, registration of transfer or
exchange, if surrendered to the Company or any agent of the Company or the
Trustee, shall be delivered to the Trustee for cancellation or, if surrendered
to the Trustee, shall be cancelled by it; and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11 TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities shall be issuable as registered Securities
without coupons, of any authorized denomination, and substantially in the form
of the definitive Securities but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee. Temporary Securities may contain
such reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Company shall execute and shall furnish definitive Securities and thereupon
temporary Securities may be surrendered in exchange therefor without charge at
each office or agency to be maintained by the Company for the purpose pursuant
to Section 3.2, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities a like aggregate principal amount of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall be entitled to the same benefits under this Indenture as
definitive Securities.
Section 2.12. CUSIP AND CINS NUMBERS. The Company in issuing
the Securities may use "CUSIP" and "CINS" numbers (if then generally in use),
and the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
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notices of redemption or exchange as a convenience to Holders; provided that any
such notice shall state that no representation is made as the correctness of
such numbers either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities.
ARTICLE THREE
COVENANTS
OF
THE COMPANY AND THE TRUSTEE.
----------------------------
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of, and interest on, each of the Securities at the place or
places, at the respective times and in the manner provided in the Securities.
Each installment of interest on the Securities may be paid by mailing checks for
such interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear on the registry books of the Company, or
by wire transfer to such holders in immediately available funds, to such bank or
other entity in the continental United States as shall be designated by such
holders and shall have appropriate facilities for such purpose, or in accordance
with the standard operating procedures of the Depositary.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC. So long as any of the
Securities remain outstanding, the Company will maintain in the City of New
York, the following: (a) an office or agency where the Securities may be
presented for payment, (b) an office or agency where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) an office or agency where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. The Company hereby
initially designates the Corporate Trust Office of the Trustee as the office or
agency for each such purpose. In case the Company shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
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SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF
TRUSTEE. The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 5.10, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 3.4 PAYING AGENTS. Whenever the Company shall appoint
a paying agent other than the Trustee, it will cause such paying agent to
execute and deliver to the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities
(whether such sums have been paid to it by the Company or by any other
obligor on the Securities) in trust for the benefit of the holders of
the Securities or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment
of the principal of or interest on the Securities when the same shall
be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee
upon the Trustee's written request at any time during the continuance
of the failure referred to in clause (b) above.
The Company will, prior to each due date of the principal of
or interest on the Securities, deposit with the paying agent a sum sufficient to
pay such principal or interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own paying agent, it will, on
or before each due date of the principal of or interest on the Securities, set
aside, segregate and hold in trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal or interest so becoming due.
The Company will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Company may at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder,
as required by this Section, such
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sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section are subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.5 CERTIFICATES TO TRUSTEE. (a) The Company will
deliver to the Trustee within 90 days after the end of each fiscal year of the
Company a brief certificate (which need not comply with Section 10.5) from the
principal executive, financial or accounting officer of the Company as to his or
her knowledge of the Company's compliance with all conditions and covenants
under this Indenture (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture).
(b) The Company will deliver to the Trustee, as soon as
possible and in any event within 10 days after the Company becomes aware or
should reasonably become aware of the occurrence of an Event of Default or a
Default, an Officers' Certificate setting forth the details of such Event of
Default or Default, and the action which the Company proposes to take with
respect thereto.
(c) The Company will deliver to the Trustee within 90 days
after the end of each fiscal year of the Company a written statement by the
Company's independent public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Securities as they relate to accounting matters, and (ii) whether, in connection
with their audit examination, any Default has come to their attention and, if
such a Default has come to their attention, specifying the nature and period of
the existence thereof.
SECTION 3.6 SECURITYHOLDERS' LISTS. If and so long as the
Trustee shall not be the Registrar, the Company will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the holders of the Securities pursuant to
Section 312 of the Trust Indenture Act (a) semi-annually not more than 15 days
after each Interest Record Date as of such Interest Record Date, and (b) at such
other times as the Trustee may request in writing, within thirty days after
receipt by the Company of any such request as of a date not more than 15 days
prior to the time such information is furnished.
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SECTION 3.7 REPORTS BY THE TRUSTEE. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted within 45 days of each April 15, commencing with April 15, 1997, and
shall be dated as of a date convenient to the Trustee no more than 60 nor less
than 45 days prior thereto.
SECTION 3.8 LIMITATION ON INDEBTEDNESS. The Company will not,
and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness (including any Acquired Indebtedness) unless (i) no Default or
Event of Default under this Indenture shall have occurred and be continuing at
the time or as a consequence of the Incurrence of such Indebtedness, (ii) after
giving effect thereto (including, in connection with any acquisition being
financed through the Incurrence of such Indebtedness, any Acquired Indebtedness
and any proved oil and gas reserves being acquired in connection therewith) the
EBITDA/Interest Ratio would be greater than 3.0 to 1.0, (iii) in the event such
Indebtedness would be Incurred by the Company but would not be Permitted Company
Secured Indebtedness, such Indebtedness would have an Average Life greater than
the Average Life of the Securities and a stated maturity later than the Stated
Maturity of the Securities and (iv) in the event such Indebtedness would be
Incurred by a Restricted Subsidiary, such Indebtedness would also qualify as
Permitted Restricted Subsidiary Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may Incur Permitted Indebtedness if no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of the
Incurrence of such Indebtedness.
Prior to the Incurrence of any Indebtedness by the Company or
any Restricted Subsidiary other than Permitted Indebtedness, the Company shall
file an Officers' Certificate with the Trustee setting forth the date such
Indebtedness is proposed to be Incurred and the EBITDA/Interest Ratio.
For purposes of calculating the amount of any Indebtedness of
the Company and its Restricted Subsidiaries, (i) any Indebtedness of a
Restricted Subsidiary that is fully and unconditionally guaranteed by the
Company or secured by a deposit of cash or Cash Equivalents of the Company shall
be deemed to be Indebtedness of such Restricted Subsidiary, and (ii) the
Vinccler Notes shall be deemed to be Indebtedness of the Company.
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SECTION 3.9 LIMITATION ON INDEBTEDNESS OF UNRESTRICTED
SUBSIDIARIES. The Company will not permit any Unrestricted Subsidiary to Incur
any Indebtedness (including Acquired Indebtedness) other than Non-Recourse
Indebtedness.
SECTION 3.10 LIMITATION ON RESTRICTED PAYMENTS. The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment, if at the time of such Restricted
Payment or after giving effect to such Restricted Payment (i) the Company would
not be able to Incur at least $1.00 of additional Indebtedness (excluding
Permitted Indebtedness) pursuant to the provisions of Section 3.8 of this
Indenture and (ii) the aggregate amount expended for all Restricted Payments
(excluding any payments permitted by clauses (ii) through (ix) of the
immediately succeeding paragraph) (the amount of any such Restricted Payment, if
other than cash, as determined by the Board of Directors, whose determination
shall be evidenced by a board resolution which resolution shall promptly be
filed with the Trustee for its records) exceeds the sum of:
(a) 50% of the aggregate Consolidated Net Income of the
Company and its Restricted Subsidiaries (or, if such aggregate
Consolidated Net Income shall be a loss, minus 100% of such loss)
accrued for the period (taken as one accounting period) beginning on
July 1, 1996 and ending on the last day of the Company's last fiscal
quarter ending prior to the date of such proposed Restricted Payment,
plus
(b) 100% of the aggregate Net Proceeds received by the Company
after June 30, 1996 from the issuance and sale (other than to a
Subsidiary of the Company) of (1) Capital Stock (including options,
warrants or other rights to acquire Capital Stock) other than any such
Capital Stock convertible into or exchangeable for (whether at the
option of the Company or the holder thereof) a security other than
Capital Stock and other than any such Capital Stock issued for any
purpose specified in clauses (vi) or (vii) of the succeeding paragraph
and (2) Indebtedness convertible into or exchangeable for Capital Stock
but only to the extent such Indebtedness has been converted or
exchanged, plus
(c) the aggregate amount of any Repaid Investments and
Restricted Subsidiary Investments but only to the extent such amount
did not otherwise increase the amount available for Restricted Payments
pursuant to (a) above or clause (iv) of the immediately succeeding
paragraph, plus
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(d) $15,000,000.
The foregoing provisions shall not be violated by reason of
(i) the payment of any dividend within 60 days after the date of declaration
thereof, if at the date of declaration such payment would comply with the
foregoing provision, (ii) any Investment in the Company by any Restricted
Subsidiary and any Investment in any Restricted Subsidiary or any person which
concurrently with such Investment becomes a Restricted Subsidiary by the Company
or another Restricted Subsidiary, (iii) any dividend payable to the Company by
any Restricted Subsidiary or to any Restricted Subsidiary by another Restricted
Subsidiary, (iv) any dividend payable to a holder (other than the Company or
another Restricted Subsidiary) of Capital Stock (other than Preferred Stock) of
a Restricted Subsidiary; provided that such dividend is paid concurrently with
the payment of a dividend by such Restricted Subsidiary to the Company or
another Restricted Subsidiary and the amount of such dividend does not exceed
such holder's pro rata share (based on such holder's percentage ownership of the
outstanding Capital Stock (other than Preferred Stock) of such Restricted
Subsidiary) of the aggregate amount of the dividend payable to all holders of
Capital Stock of such Restricted Subsidiary, (v) any dividend, distribution or
other payment on or with respect to Capital Stock of the Company to the extent
payable solely in shares of Capital Stock of the Company, (vi) any purchase,
redemption or other acquisition or retirement for value or any defeasance of any
Subordinated Indebtedness, in exchange for, by conversion into or from the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of Capital Stock of the Company or new Subordinated Indebtedness;
provided the Average Life of such new Subordinated Indebtedness is greater than
the Average Life of the Securities, the stated maturity of such new Subordinated
Indebtedness is later than the Stated Maturity of the Securities and the new
Subordinated Indebtedness is subordinated to the Securities to at least the
extent that the Subordinated Indebtedness being purchased, redeemed, acquired,
retired or defeased was subordinated to the Securities, (vii) any purchase,
redemption or other acquisition or retirement for value of any shares of Capital
Stock of the Company in exchange for, by conversion into or from the Net
Proceeds of the substantially concurrent sale (other than to a Subsidiary of the
Company) of Capital Stock of the Company, (viii) any Investment in a person that
represents the portion of the consideration for an Asset Sale that is not, and
is not required to be pursuant to the provisions of Section 3.12 of this
Indenture, cash or Cash Equivalents and (ix) payments or distributions pursuant
to
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or in connection with a consolidation, merger or transfer of assets that
complies with the provisions of Article Eight; provided that, in the case of any
of the foregoing, no Default or Event of Default has occurred and is continuing
or shall occur as a consequence thereof.
SECTION 3.11 LIMITATION ON TRANSACTIONS WITH AFFILIATES. The
Company will not, and will not permit any Subsidiary to, directly or indirectly,
enter into any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) (such a transaction or series of related transactions, an "Affiliate
Transaction") with (i) any Affiliate of the Company or any Subsidiary or (ii)
any officer, director or employee of the Company or any Subsidiary or any
Affiliate thereof unless (i) such Affiliate Transaction is on terms that are no
less favorable to the Company or such Subsidiary, as the case may be, than those
that would have been available in a comparable arm's-length transaction with an
unaffiliated third party and (ii) (a) with respect to any Affiliate Transaction
involving aggregate payments equal to or in excess of $1 million (or, in the
case of any loan or advance to any officer, director or employee of the Company
or its Restricted Subsidiaries, $100,000), but less than $5 million, such
Affiliate Transaction shall have received the approval of a majority of the
Disinterested Directors (as evidenced by a board resolution of such
Disinterested Directors which resolution shall promptly be filed with the
Trustee) and (b) with respect to any Affiliate Transaction involving aggregate
payments equal to or greater than $5 million, the Company shall have obtained a
written opinion of an Independent Financial Advisor stating that the terms of
such Affiliate Transaction are fair to the Company or the Subsidiary, as the
case may be, from a financial point of view which opinion shall promptly be
filed with the Trustee.
The foregoing limitations shall not apply to (i) any
transaction between the Company and any Restricted Subsidiary or between
Restricted Subsidiaries, (ii) the payment of reasonable and customary regular
fees to directors of the Company who are not employees of the Company, (iii) any
employment contract to which any officer, director or employee is a party or
stock option plan or grant of any option thereunder to any officer, director or
employee; provided that any such agreement or arrangement (or series of related
agreements or arrangements) involving aggregate payments (or in the case of any
option grant, with an aggregate exercise price) equal to or in excess of
$100,000 shall have received the approval of the Compensation Committee of the
Board of Directors (as
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evidenced by a resolution of such Committee which resolution shall promptly be
filed with the Trustee) which Committee shall be comprised of Disinterested
Directors, or (iv) any Permitted Investment or any Restricted Payments not
prohibited by the provisions of Section 3.10.
SECTION 3.12 DISPOSITION OF PROCEEDS OF ASSET SALES. (a) The
Company will not, and will not permit any Restricted Subsidiary to, make any
Asset Sale unless (i) such Asset Sale is for not less than the fair market value
of the properties and assets sold, (ii) at least 85% of the consideration (not
including the assumption of any Indebtedness of the Company or any Restricted
Subsidiary (other than Subordinated Indebtedness)) consists of cash, Cash
Equivalents or Publicly Traded Stock (so long as prior to such Asset Sale the
Board of Directors has made a determination as evidenced by a board resolution
(which resolution shall promptly be filed with the Trustee), to sell such
Publicly Traded Stock for cash within ten Business Days after the date of such
Asset Sale and such Publicly Traded Stock does not constitute more than 30% of
such 85%), except (a) in the case of an Asset Sale involving oil and gas
properties, the consideration may consist solely or in part of tangible
properties or direct or indirect interests in tangible properties to be used in
the Company's or its Restricted Subsidiaries' Oil and Gas Business ("Tangible
Business Properties") having a fair market value at least equal to the fair
market value of the assets exchanged and (b) the Company and its Restricted
Subsidiaries may enter into farm-out transactions consistent with industry
standards and otherwise in accordance with the terms of this Indenture
including, but not limited to, the provisions of Section 3.11, (iii) unless
prior to the date of such Asset Sale the Board of Directors has made a
determination, as evidenced by a board resolution (which resolution shall
promptly be filed with the Trustee), to use all of the Net Cash Proceeds of such
Asset Sale that consist of cash and Cash Equivalents to permanently repay or
prepay Senior Indebtedness or Indebtedness of a Restricted Subsidiary within
thirty days after the date of such Asset Sale, the Company could Incur an
additional $1.00 of Indebtedness (other than Permitted Indebtedness) pursuant to
Section 3.8 of this Indenture, (iv) within ten Business Days after the date of
such Asset Sale, any Publicly Traded Stock required by a board resolution to be
sold for cash, is sold for cash and (v) the requirements set forth below are
met. For purposes of the foregoing, in the case of any required fair market
value determination with respect to any Asset Sale or Tangible Business
Properties or Publicly Traded Stock acquired in connection with such Asset Sale
having a fair market value in excess of $5 million, such determination
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shall be made by the Board of Directors as evidenced by a board resolution which
resolution shall promptly be filed with the Trustee.
Subject to clause (iii) above, within twelve months of any
Asset Sale, the Company shall either (x) apply or cause the application of an
amount equal to the Net Cash Proceeds of such Asset Sale, or a portion thereof,
to the permanent repayment or prepayment of Senior Indebtedness or Indebtedness
of any Restricted Subsidiary or (y) invest such Net Cash Proceeds, or a portion
thereof, in the acquisition or development of Tangible Business Properties. The
amount of such Net Cash Proceeds not applied, used or invested as set forth in
clause (x) or (y) above shall constitute "Excess Proceeds."
(b) If the aggregate amount of Excess Proceeds, together with
any remaining Excess Proceeds from any prior Asset Sale, equals or exceeds $25
million, the Company shall so notify the Trustee in writing and shall offer to
purchase from all holders of the Securities (an "Asset Sale Offer"), and shall
purchase from Holders accepting such Asset Sale Offer on the date fixed for such
Asset Sale Offer (the "Asset Sale Offer Date"), the maximum amount (expressed in
integral multiples of aggregate principal amount of $1,000) of Securities that
may be purchased out of the Excess Proceeds, in accordance with the procedures
set forth in this Section, at an offer price in cash (the "Asset Sale Offer
Price") in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to any Asset Sale Offer Date; provided that any
semi-annual payment of interest becoming due on the Asset Sale Offer Date shall
be payable to the holders of such Securities registered as such on the relevant
Interest Record Date subject to the terms and provisions of Section 2.4 hereof.
(c) Promptly, and in any event within 30 days after the date
upon which the Company becomes obligated to make an Asset Sale Offer, the
Company shall be obligated to deliver to the Trustee and send, by first-class
mail, postage prepaid to each Holder, a written notice stating:
(1) that the Company is obligated to make an Asset Sale Offer;
(2) the Asset Sale Offer Date, which shall be not less than 30
nor more than 60 days after such notice;
(3) the aggregate principal amount of the outstanding
Securities offered to be purchased by the
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Company pursuant to the Asset Sale Offer (the "Purchase Amount");
(4) the Asset Sale Offer Price;
(5) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(6) the place or places where Securities are to be surrendered
for tender pursuant to the Asset Sale Offer;
(7) that interest on any Security not tendered or tendered but
not purchased by the Company pursuant to the Asset Sale Offer will
continue to accrue;
(8) that on the Asset Sale Offer Date the Asset Sale Offer
Price will become due and payable upon each Security accepted for
payment pursuant to the Asset Sale Offer and that interest thereon
shall cease to accrue on and after the Asset Sale Offer Date;
(9) that each Holder electing to tender a Security pursuant to
the Asset Sale Offer will be required to surrender such Security at the
place or places specified in the Asset Sale Offer prior to the close of
business on the Asset Sale Offer Date (such Security being, if the
Company or the Trustee so requires, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any
portion of the Securities tendered if the Company (or its paying agent)
receives, not later than the close of business on the Asset Sale Offer
Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his
tender;
(11) that (a) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Asset Sale Offer, the Company shall purchase
all
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such Securities and (b) if Securities in an aggregate principal amount
in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Asset Sale Offer, the Company shall purchase Securities
having an aggregate principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be deemed appropriate so
that only Securities in denominations of $1,000 or integral multiples
thereof shall be purchased); and
(12) that in case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Security so tendered.
Such notice shall also contain information concerning the business of the
Company which the Company in good faith believes will enable such Holders to
make an informed decision (which at a minimum will include (A) the most recently
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly Report
on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent
to such Quarterly Report, other than Current Reports describing other asset
dispositions otherwise described in the offering materials relating to the
Securities (or corresponding successor reports or reports otherwise required to
be delivered to Holders if the Company is no longer filing reports pursuant to
the Exchange Act), (B) a description of material developments in the Company's
business subsequent to the date of the latest of such Reports and (C) if
material, appropriate pro forma financial information and all instructions and
materials necessary to tender Securities pursuant to the Asset Sale Offer.
(d) On the Asset Sale Offer Date, the Company shall (i) accept
for payment Securities or portions thereof tendered pursuant to the Asset Sale
Offer, (ii) deposit with the Trustee money sufficient to pay the purchase price
of all Securities or portions thereof so tendered and (iii) deliver or cause to
be delivered to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof tendered to the Company.
The Trustee shall promptly mail to the holders of Securities so accepted payment
in an amount equal to the Asset Sale Offer Price, and promptly authenticate and
mail to such Holders a new Security in a principal amount equal to any
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unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Asset Sale Offer on or as soon as practicable after
the Asset Sale Offer Date.
(e) To the extent that the aggregate amount of Securities
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds
relating thereto (such shortfall constituting a "Deficiency"), then the Company
may use such Deficiency, or a portion thereof, for general corporate purposes.
Upon completion of an Asset Sale Offer, the amount of Excess Proceeds shall be
reset at zero.
(f) The Company shall comply with any applicable tender offer
rules then in effect, including Section 14(e) of the Exchange Act and Rule 14e-1
promulgated thereunder (or any successor provisions), in connection with an
Asset Sale Offer. In the event of any conflict between such tender offer rules
and the provisions set forth in this Indenture, such tender offer rules shall
control.
SECTION 3.13 LIMITATION ON LIENS SECURING INDEBTEDNESS. The
Company will not, and will not permit any Restricted Subsidiary to, create,
incur, assume or suffer to exist any Lien of any kind upon any of their
respective assets or properties now owned or acquired after the date of this
Indenture, or any income or profits therefrom, securing any Indebtedness of the
Company or any Restricted Subsidiary (other than Permitted Liens) without making
provision for all of the Securities to be equally and ratably secured with (or
prior to) such Indebtedness, provided, however that if such Lien securing such
Indebtedness ceases to exist, such equal and ratable (or prior) Lien for the
benefit of the holders of the Securities shall cease to exist; provided,
further, that the Lien securing any Subordinated Indebtedness shall be
subordinated to the Lien securing the Securities to at least the extent that
such Subordinated Indebtedness is subordinated to the Securities.
SECTION 3.14 LIMITATION ON CONDUCT OF BUSINESS. The Company
will operate and will cause its Restricted Subsidiaries to be operated in a
manner such that their business activities will be the Oil and Gas Business.
SECTION 3.15 LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES. The Company will not, and will
not permit any Restricted Subsidiary to, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i) pay dividends or make any other
distributions on Capital
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Stock of any Restricted Subsidiary or any Redeemable Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary, (ii) pay any
Indebtedness owed to the Company or any Restricted Subsidiary, (iii) make any
Investment in the Company or any Restricted Subsidiary or (iv) transfer any of
its property or assets to the Company or any Restricted Subsidiary, except (a)
any encumbrance or restriction pursuant to an agreement in effect on the date of
this Indenture, (b) any encumbrance or restriction with respect to any person
that is not a Restricted Subsidiary on the date of this Indenture, in existence
at the time such person becomes a Restricted Subsidiary and not created in
connection with, or in contemplation of, such person becoming a Restricted
Subsidiary so long as such encumbrance or restriction is not applicable to any
person or the property or assets of any person other than the person becoming a
Restricted Subsidiary, (c) any encumbrance or restriction pursuant to any
agreement that extends, refinances, renews or replaces any agreement containing
any encumbrance or restriction described in the foregoing clauses (a) and (b),
provided, however, that the terms and conditions of any such encumbrance or
restriction are not less favorable to the holders of the Securities than those
contained in the agreement evidencing the restriction or encumbrance so
extended, refinanced, renewed or replaced, (d) any encumbrance or restriction
arising under law and (e) any restriction arising under customary non-assignment
and non-subletting clauses in leases. Nothing contained in this paragraph shall
prevent the Company or any Restricted Subsidiary from entering into any
agreement permitting the incurrence of Liens otherwise permitted under the
provisions of Section 3.13 of this Indenture.
SECTION 3.16 LIMITATION ON GUARANTEES. The Company will not
permit any Restricted Subsidiary, directly or indirectly, to assume, guarantee
or in any other manner become liable with respect to the payment of any
Indebtedness of the Company, unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for a
guarantee of the payment of the Securities by such Restricted Subsidiary;
provided, however, in the case of such Restricted Subsidiary's assumption,
guarantee, or other liability with respect to Subordinated Indebtedness, such
guarantee, assumption or other liability shall be subordinated to such
Restricted Subsidiary's guarantee of the Securities to at least the extent that
such Subordinated Indebtedness is subordinated to the Securities; and provided,
further, that the provisions of this paragraph shall not be applicable to any
guarantee, assumption or other liability with respect to the payment of any
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Indebtedness of the Company by any Restricted Subsidiary (i) in existence on the
date of this Indenture, (ii) to the extent such Indebtedness of the Company
could be Incurred by such Restricted Subsidiary as Permitted Restricted
Subsidiary Indebtedness, or (iii) that (x) existed at the time such person
became a Restricted Subsidiary of the Company and (y) was not Incurred in
connection with, or in contemplation of, such person becoming a Restricted
Subsidiary. Notwithstanding the foregoing, any such guarantee of the Securities
by a Restricted Subsidiary shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon the release or
discharge of such guarantee of such Indebtedness, other than a release or
discharge by, or as a result of, any payment under such guarantee by such
Restricted Subsidiary.
SECTION 3.17 CHANGE IN CONTROL. (a) If there shall have
occurred a Change in Control, Securities shall be purchased by the Company, at
the option of the Holder thereof, in whole or in part in integral multiples of
aggregate principal amount of $1,000, on a date that is not earlier than 45 days
nor later than 60 days from the date the Change in Control Notice referred to
below is given to Holders or such later date identified by the Company as may be
necessary for the Company to comply with requirements under the Exchange Act
(such date or such later date, being the "Change in Control Purchase Date"), at
a purchase price in cash (the "Change in Control Purchase Price") equal to 101%
of the principal amount thereof plus accrued and unpaid interest, if any, to any
Change in Control Purchase Date; provided that any semi-annual payment of
interest becoming due on the Change in Control Purchase Date shall be payable to
the holders of such Securities registered as such on the relevant Interest
Record Date subject to the terms and provisions of Section 2.4 hereof.
(b) Within 15 days following any Change in Control, the Issuer
shall send, by first-class mail, postage prepaid, a Change in Control Notice to
each Holder with a copy to the Trustee stating:
(1) that a Change in Control has occurred and that
such Holder has the right to require the Company to repurchase
such Holder's Securities at the Change in Control Purchase
Price;
(2) the circumstance and relevant facts regarding
such Change in Control (including information with respect to
pro forma historical income, cash flow and capitalization
after giving effect to such Change in Control);
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(3) the Change in Control Purchase Date;
(4) that the Holder may tender all or any portion of
the Securities registered in the name of such Holder and that
any portion of a Security tendered must be tendered in an
integral multiple of $1,000 principal amount;
(5) the place or places where Securities are to be
surrendered for tender;
(6) that interest on any Security not tendered will
continue to accrue;
(7) that on the Change in Control Purchase Date the
Change in Control Purchase Price will become due and payable
upon each Security accepted for payment and that interest
thereon shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to tender a Security
will be required to surrender such Security at the place or
places specified in the Change in Control Notice prior to the
close of business on the Change in Control Purchase Date (such
Security being, if the Company or the Trustee so requires,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(9) that Holders will be entitled to withdraw all or
any portion of Securities tendered if the Company (or its
paying agent) receives, not later than the close of business
on the Change in Control Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder
tendered and a statement that such Holder is withdrawing all
or a portion of his tender; and
(10) that Holders which elect to have their
Securities purchased only in part will be issued new
Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered.
(c) On the Change in Control Purchase Date, the Company shall
(i) accept for payment Securities or portions
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thereof tendered pursuant to the Change in Control Notice, (ii) deposit with the
Trustee money sufficient to pay the purchase price of all Securities or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Trustee
Securities so accepted together with an Officers' Certificate stating the
Securities or portions thereof tendered to the Company. The Trustee shall
promptly mail to the holders of Securities so accepted payment in an amount
equal to the Change in Control Purchase Price, and promptly authenticate and
mail to such Holders a new Security in a principal amount equal to any
unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Change in Control offer on or as soon as practicable
after the Change in Control Purchase Date.
(d) The Company shall comply with any applicable tender offer
rules then in effect, including Section 14(e) of the Exchange Act and Rule 14e-1
promulgated thereunder (or any successor provisions), in connection with a
Change in Control offer. In the event of any conflict between such tender offer
rules and the provisions set forth in this Indenture, such tender offer rules
shall control.
SECTION 3.18 PROVISION OF FINANCIAL INFORMATION. To the extent
permitted under the Exchange Act, whether or not the Company is required to
comply with Section 13(a) or 15(d) (or any successor provision) of the Exchange
Act, the Company shall file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Section 13(a) or 15(d) (or any successor
provision) if the Company were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required to file such documents if the Company
were so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) (or any successor provision) of
the Exchange Act if the Company were required to be subject to such Sections and
(b) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request supply copies of such
documents to any Holder.
SECTION 3.19. WAIVER OF STAY, EXTENSION OR USURY LAWS. The
Company covenants (to the extent that it may
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lawfully do so) that it will not (i) at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company from paying all or any portion of the principal of or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture and the Company will expressly waive all benefit or advantage of any
such law and (ii) hinder, delay or impede the execution of any power granted to
the Trustee under this Indenture and will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
--------------------
SECTION 4.1 EVENT OF DEFAULT DEFINED; ACCELERATION OF
MATURITY; WAIVER OF DEFAULT. In case one or more of the following Events of
Default (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing, that
is to say:
(a) default in the payment of any installment of interest upon
any of the Securities as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal
of any of the Securities, the amount payable upon the redemption of any
Securities, the Change in Control Purchase Price or the Asset Sale
Offer Price as and when the same shall become due and payable under
this Indenture whether at Stated Maturity, upon any redemption, by
declaration of acceleration, when due for purchase by the Company, or
otherwise; or
(c) default in the performance or breach of any covenant or
agreement of the Company under this Indenture (other than a default in
the performance or breach of a covenant or agreement that is
specifically dealt with elsewhere herein) and continuance of such
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default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the holders of at least 25% in principal
amount of the outstanding Securities a written notice specifying such
default or breach and stating that such notice is a "Notice of Default"
under this Indenture; or
(d) default in the payment of any principal, premium, if any,
or interest when due or after the expiration of any applicable grace
period in respect of any Indebtedness of the Company or any Restricted
Subsidiary (including, without limitation, reimbursement obligations
with respect to Performance Letters of Credit) having an outstanding
principal amount (or with an outstanding reimbursement obligation) of
$2.5 million or more individually or in the aggregate or the
acceleration of the maturity of any such Indebtedness; or
(e) one or more final judgments or orders rendered against the
Company or any Restricted Subsidiary which require the payment in
money, either individually or in an aggregate amount, of more than
$500,000 shall remain unsatisfied or unstayed for 30 consecutive days
after any such judgment or order becomes final and nonappealable; or
(f) the entry of a decree or order by a court having
jurisdiction in the premises (i) for relief in respect of the Company
or any Material Subsidiary in an involuntary case or proceeding under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or (ii) adjudging the Company or any such Material
Subsidiary as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
or any such Material Subsidiary under any such law, or (iii) appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or any Material Subsidiary or of
any substantial part of any of their properties, or ordering the
winding up or liquidation of any of their affairs, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(g) the institution by the Company or any Material Subsidiary
of a voluntary case or proceeding under any applicable bankruptcy,
insolvency or other
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similar law now or hereafter in effect, or the consent by the Company
or any Material Subsidiary to the entry of a decree or order for relief
in respect of the Company or any Material Subsidiary in any involuntary
case or proceeding under any such law or to the institution of
bankruptcy or insolvency proceedings against the Company or such
Material Subsidiary, or the filing by the Company or any Material
Subsidiary of a petition or answer or consent seeking reorganization or
relief under any such law, or the consent by the Company or any
Material Subsidiary to the filing of any such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official)
of the Company or such Material Subsidiary or any substantial part of
any of their properties, or the making by the Company or any Material
Subsidiary of an assignment for the benefit of creditors, or the
admission by the Company or any Material Subsidiary in writing of an
inability to pay any of their debts generally as they become due or the
taking of corporate action by the Company or any Material Subsidiary in
furtherance of any such action;
then, and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable (and other than as
specified in clauses (f) and (g) above), either the Trustee or the holders of at
least 25% in aggregate principal amount of the Securities then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may, and the Trustee at the request of such holders shall,
declare the entire principal of all the Securities and the interest accrued
thereon to be due and payable immediately, and upon any such declaration the
same shall become immediately due and payable immediately after receipt by the
Company of such written notice. If an Event of Default specified in clause (f)
or (g) above occurs and is continuing, then the Securities and the accrued
interest thereon shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder. This
provision, however, is subject to the condition that if, at any time after the
principal of the Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, (a) the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay (i) all matured installments of
interest upon all the Securities and the principal of any and all Securities
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment
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of such interest is enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest specified in the Securities,
to the date of such payment or deposit) and (ii) such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, their respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith, (b) the
rescission would not conflict with any judgment or decree and (c) any and all
Events of Default under this Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have
been cured, waived or otherwise remedied as provided herein--then and in every
such case the holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults and rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent Default or shall impair any right consequent
thereon.
SECTION 4.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY
PROVE DEBT. The Company covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities, the amount
payable upon the redemption of any securities, the Change in Control Purchase
Price or the Asset Sale Offer Price when the same shall have become due and
payable, whether upon maturity, upon any redemption, by declaration, when due
for purchase or otherwise--then upon demand of the Trustee, the Company will pay
to the Trustee for the benefit of the holders of the Securities the whole amount
that then shall have become due and payable on all such Securities for principal
or interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of interest at the
same rate as the rate of interest specified in the Securities); and in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including reasonable compensation to the Trustee and
each predecessor Trustee, their respective agents, attorneys and counsel, and
any expenses and liabilities incurred, and all advances made, by the Trustee and
each
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predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay
the principal of and interest on the Securities to the Holders, whether or not
the Securities be overdue.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon the Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon the Securities, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Company or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Company or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to the
Company or other obligor upon the Securities, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the
Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of
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the Securityholders allowed in any judicial proceedings relative to the
Company or other obligor upon the Securities, or to the creditors or
property of the Company or such other obligor,
(b) if permitted by applicable law and regulations and
evidenced by an opinion of counsel, to vote on behalf of the holders of
the Securities in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof on any
trial or other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and
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attorneys, shall be for the ratable benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities, and it shall not be necessary to make any holders
of the Securities parties to any such proceedings.
SECTION 4.3 APPLICATION OF PROCEEDS. Any moneys collected by
the Trustee pursuant to this Article shall be applied in the following order at
the date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Securities and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities shall not have
become and be then due and payable, to the payment of interest in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest specified in the Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest
specified in the Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and
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unpaid upon the Securities, then to the payment of such principal and
interest, without preference or priority of principal over interest, or
of interest over principal, or of any instalment of interest over any
other instalment of interest, or of any Security over any other
Security, ratably to the aggregate of such principal and accrued and
unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 4.4 SUITS FOR ENFORCEMENT. In case an Event of Default
has occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 RESTORATION OF RIGHTS ON ABANDONMENT OF
PROCEEDINGS. In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
for any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 4.6 LIMITATIONS ON SUITS BY SECURITYHOLDERS. No holder
of any Security shall have any right by virtue or by availing of any provision
of this Indenture to institute any action or proceeding at law or in equity or
in bankruptcy or otherwise upon or under or with respect to this Indenture, or
for the appointment of a trustee, receiver, liquidator, custodian or other
similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities then
outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as trustee hereunder and shall have
offered to
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the Trustee such reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall
have failed to institute any such action or proceedings and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 4.8; it being understood and intended, and being expressly
covenanted by the taker and holder of every Security with every other taker and
Holder and the Trustee, that no one or more holders of Securities shall have any
right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
holders of Securities. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
SECTION 4.7 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION
NOT WAIVER OF DEFAULT. Except as provided in Section 2.9, no right or remedy
herein conferred upon or reserved to the Trustee or to the Securityholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any holder of any of
the Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 4.8 CONTROL BY SECURITYHOLDERS. The holders of a
majority in aggregate principal amount of the Securities at the time outstanding
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or
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exercising any trust or power conferred on the Trustee by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee, being advised by counsel, shall determine
that the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee, or a
trust committee of directors or Responsible Officers of the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forebearances specified in or pursuant to such direction shall be
unduly prejudicial to the interests of holders of the Securities not joining in
the giving of said direction, it being understood that (subject to Section 5.1)
the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction by Securityholders.
SECTION 4.9 WAIVER OF PAST DEFAULTS. Prior to the declaration
of the maturity of the Securities as provided in Section 4.1, the holders of a
majority in aggregate principal amount of the Securities at the time outstanding
may by notice to the Trustee (and without notice to any other Holder) on behalf
of the holders of all the Securities waive any past default or Event of Default
hereunder and its consequences, except (i) an Event of Default described in
section 4.1(b) or (ii) a default in the payment of interest on any Securities or
in respect of a covenant or provision hereof which cannot be modified or amended
without the consent of the holder of each outstanding Security affected. In the
case of any such waiver, the Company, the Trustee and the holders of the
Securities shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other default
or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall
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extend to any subsequent or other default or Event of Default or impair any
right consequent thereto.
ARTICLE FIVE
CONCERNING THE TRUSTEE.
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SECTION 5.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which
the Trustee has actual notice and after the curing or waiving of all
such Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same
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to determine whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers of
the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the holders of not less than a majority in principal
amount of the Securities at the time outstanding relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise
of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
This Section 5.1 is in furtherance of and subject to Sections
315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 CERTAIN RIGHTS OF THE TRUSTEE. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or
any other certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon, security or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy
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thereof certified by the secretary or an assistant secretary of the
Company;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred therein or
thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder,
of which the Trustee has actual notice, and after the curing or waiving
of all Events of Default, the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to
do by the holders of not less than a majority in aggregate principal
amount of the Securities then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such
expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such examination shall be paid by the Company or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the
Company upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either
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directly or by or through agents or attorneys not regularly in its
employ and the Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with due
care by it hereunder.
SECTION 5.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION
OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
SECTION 5.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES;
COLLECTIONS, ETC. The Trustee or any agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not the Trustee or such agent and
may otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee or such agent.
SECTION 5.5 MONEYS HELD BY TRUSTEE. Subject to the provisions
of Section 9.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 NOTICE OF DEFAULT. If any Default or any Event of
Default occurs and is continuing and if such Default or Event of Default is
actually known to the Trustee, the Trustee shall mail to each Holder in the
manner and to the extent provided in Trust Indenture Act Section 313(c) notice
of the Default or Event of Default within 45 days after it occurs, unless such
Default or Event of Default has been cured; provided, however, that, except in
the case of a default in the payment of the principal of, premium, if any, or
interest on any Security, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of
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the Trustee in good faith determine that the withholding of such notice is in
the interest of the Holders.
SECTION 5.7 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND
ITS PRIOR CLAIM. The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith. The Company also covenants to indemnify the Trustee and each
predecessor Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or the
trusts hereunder and its duties hereunder, including the costs and expenses of
defending itself against or investigating any claim of liability in the
premises. The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee and to pay or reimburse the
Trustee and each predecessor Trustee for expenses, disbursements and advances
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness shall
be a senior claim to that of the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Securities, and the Securities are hereby subordinated
to such senior claim.
SECTION 5.8 RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE,
ETC. Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and established
by an Officers' Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered
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or omitted by it under the provisions of this Indenture upon the faith thereof.
SECTION 5.9 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE. The
Trustee hereunder shall at all times be a corporation having a combined capital
and surplus of at least $100,000,000, and which is eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR
TRUSTEE. (a) The Trustee may at any time resign by giving written notice of
resignation to the Company and by mailing notice thereof by first-class mail to
holders of Securities at their last addresses as they shall appear on the
Security register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written
request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.9 and shall
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fail to resign after written request therefor by the Company or by any
such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder
who has been a bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 6.1 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section 5.10 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.11.
SECTION 5.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE.
Any successor trustee appointed as provided in Section 5.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written
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request of the Company or of the successor trustee, upon payment of its charges
then unpaid, the trustee ceasing to act shall, subject to Section 9.4, pay over
to the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.7.
Upon acceptance of appointment by a successor trustee as
provided in this Section 5.11, the Company shall mail notice thereof by
first-class mail to the holders of Securities at their last addresses as they
shall appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
5.10. If the Company fails to mail such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 5.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS OF TRUSTEE. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or to which the Trustee's assets
may be sold, or any corporation resulting from any merger, conversion,
consolidation or sale to which the Trustee shall be a party or by which the
Trustee's property may be bound, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
5.9, without the execution or filing of any paper or any further act on the part
of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate
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such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
SECTION 5.13 PREFERENTIAL COLLECTION OF CLAIMS. Reference is
made to Section 311 of the Trust Indenture Act. For purposes of Section 311(b)
(4) and (6) of such Act, the following terms shall mean:
(a) "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after delivery of
the goods or securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand; and
(b) "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or incurred
by the Company for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company arising from the
making, drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
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SECTION 6.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders 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
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instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Sections 5.1 and 5.2) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Article.
SECTION 6.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING
OF SECURITIES; RECORD DATE. Subject to Sections 5.1 and 5.2, the execution of
any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the Registrar thereof. The Company may set a record date for
purposes of determining the identity of holders of Securities entitled to vote
or consent to any action referred to in Section 6.1, which record date may be
set at any time or from time to time by notice to the Trustee, for any date or
dates (in the case of any adjournment or resolicitation) not more than 60 days
nor less than five days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof, only holders of
Securities of record on such record date shall be entitled to so vote or give
such consent or to withdraw such vote or consent.
SECTION 6.3 SECURITIES OWNED BY COMPANY DEEMED NOT
OUTSTANDING. In determining whether the holders of the requisite aggregate
principal amount of Securities have concurred in any direction, consent or
waiver under this Indenture, Securities which are owned by the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities shall be disregarded and deemed
not to be outstanding for the purpose of any such determination, except that for
the purpose of determining whether the Trustee shall be protected in relying on
any such direction, consent or waiver only Securities which the Trustee actually
knows are so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities. In case of a dispute as to such right, the
advice of counsel shall be
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full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.1 and
5.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are outstanding for the purpose of any such
determination.
SECTION 6.4 RIGHT OF REVOCATION OF ACTION TAKEN. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
6.1, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security the serial number of which is shown
by the evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written notice at
the Corporate Trust Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security and of any Securities issued in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the holders of the percentage in
aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the holders of all the Securities.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
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SECTION 7.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities any property or assets;
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(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company
pursuant to Article Eight;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of
the holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the holders of a majority in aggregate principal
amount of the Securities to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem (i)
necessary or desirable and (ii) not to adversely affect the interests
of the holders of the Securities; and
(e) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such Securities
with Securities issued hereunder in fully registered form, and to make
all appropriate changes for such purpose.
The Trustee is hereby authorized to join in the execution of
any such supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder,
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but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Article Six) of the
holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding, the Company, when authorized by a resolution
of its Board of Directors, and the Trustee may, from time to time and at any
time, enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of the Securities; provided, that no such
supplemental indenture shall (a) extend the Stated Maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or upon the occurrence of an Event of Default, or reduce the Change in Control
Purchase Price or the Asset Sale Offer Price, or impair or affect the right of
any Securityholder to institute suit for the payment thereof without the consent
of the holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities, the consent of the Holders of which is required for
any such supplemental indenture, without the consent of the holders of all
Securities then outstanding.
Upon the request of the Company, accompanied by a copy of a
resolution of the Board of Directors certified by the Secretary or an Assistant
Secretary of the Company authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Securityholders and other documents, if any, required by Section 6.1 the Trustee
shall join with the Company in the execution of such supplemental indenture
unless such 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 supplemental
indenture.
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It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Company shall mail a notice thereof by first-class mail, postage prepaid, to the
holders of Securities at their addresses as they shall appear on the registry
books of the Company, setting forth in general terms the substance of such
supplemental indenture. 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 supplemental indenture.
SECTION 7.3 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 7.4 DOCUMENTS TO BE GIVEN TO TRUSTEE; COMPLIANCE WITH
TIA. The Trustee, subject to the provisions of Sections 5.1 and 5.2, may receive
an Officers' Certificate and an Opinion of Counsel as conclusive evidence that
any such supplemental indenture complies with the applicable provisions of this
Indenture. Every such supplemental indenture shall comply with the TIA.
SECTION 7.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation approved by the Trustee as to form (but not as to substance) as to any
matter provided for by such supplemental indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by
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the Trustee and delivered in exchange for the Securities then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
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SECTION 8.1 WHEN ISSUER MAY MERGE, ETC. The Company may not,
without the consent of the holders of all Securities then outstanding,
consolidate with, merge into or convey, sell, transfer, lease, exchange or
otherwise dispose of all of its assets and properties (as an entirety or
substantially as an entirety in one transaction or a series of related
transactions), to any other person unless (i) the successor is a corporation or
partnership organized under the laws of the United States or any political
subdivision thereof or therein, (ii) the successor assumes all obligations of
the Company under this Indenture and the Securities, (iii) after giving effect
to such consolidation, merger, conveyance, sale, transfer, lease, exchange or
other disposition, no Default or Event of Default, shall have occurred and be
continuing, (iv) the successor would have a pro forma Consolidated Net Worth
after giving effect to such consolidation, merger, conveyance, sale, transfer,
lease, exchange or other disposition and prior to any purchase accounting
adjustments at least equal to the Consolidated Net Worth of the Company prior to
such consolidation, merger, conveyance, sale, transfer, lease, exchange or other
disposition and (v) the Company could Incur, immediately prior to such
consolidation, merger, conveyance, sale, transfer, lease, exchange or other
disposition, and the successor would be able to Incur, after giving effect to
such consolidation, merger, conveyance, sale, transfer, lease, exchange or other
disposition, an additional $1.00 of Indebtedness (excluding Permitted
Indebtedness) pursuant to the provisions of Section 3.8 of this Indenture.
SECTION 8.2 SUCCESSOR CORPORATION SUBSTITUTED. Upon any
consolidation or merger or any conveyance, sale, transfer, lease, exchange or
other disposition of the properties and assets of the Company substantially as
an entirety to any person in accordance with the provisions described above, the
successor formed by such consolidation or into which the Company is merged or to
which such conveyance, sale, transfer, lease, exchange or other disposition is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company in this Indenture; and thereafter,
except in the case of a conveyance, sale,
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transfer, lease, exchange or other disposition of properties to another person,
the predecessor person shall be released from all obligations and covenants
under this Indenture and the Securities.
SECTION 8.3 OPINION OF COUNSEL TO TRUSTEE. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, conveyance,
sale, transfer, lease, exchange or other disposition complies with the
applicable provisions of this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
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SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE. If at any
time (a) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities outstanding hereunder, as and when the same shall
have become due and payable, or (b) the Company shall have delivered to the
Trustee for cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.9) or (c) (i) all such
Securities not theretofore delivered to the Trustee for cancellation (x) shall
have become due and payable, (y) are by their terms to become due and payable
within one year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
(ii) the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys repaid
by the Trustee or any paying agent to the Company in accordance with Section
9.4) sufficient to pay at maturity or upon redemption all such Securities not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, (iii)
no Default or Event of Default shall have occurred or be continuing on the date
of such deposit and (iv) such deposit shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and
exchange, (ii) substitution of
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apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of Holders to receive payments of principal thereof and interest thereon,
(iv) the rights, obligations and immunities of the Trustee hereunder, and (v)
the rights of the Securityholders as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them), and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture. The Company agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities.
SECTION 9.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR
PAYMENT OF SECURITIES. Subject to Section 9.4, all moneys deposited with the
Trustee pursuant to Section 9.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the holders of the particular Securities for
the payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest;
but such money need not be segregated from other funds except to the extent
required by law.
SECTION 9.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture all moneys then
held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee and thereupon such
paying agent shall be released from all further liability with respect to such
moneys.
SECTION 9.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT
UNCLAIMED FOR THREE YEARS. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
and not applied but remaining unclaimed for three years after the date upon
which such principal or interest shall have become due and payable, shall, upon
the written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee or such paying agent, and the holder of
such Security shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed
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property laws, thereafter look only to the Company for any payment which such
Holder may be entitled to collect, and all liability of the Trustee or any
paying agent with respect to such moneys shall thereupon cease.
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
-------------------------
SECTION 10.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS OF COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 10.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF
PARTIES AND SECURITYHOLDERS. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the holders
of the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the holders of the Securities.
SECTION 10.3 SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY
INDENTURE. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 10.4 NOTICES AND DEMANDS ON COMPANY, TRUSTEE AND
SECURITYHOLDERS. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until
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another address of the Company is filed by the Company with the Trustee) to
Benton Oil and Gas Company, 1145 Eugenia Place, Suite 200, Carpinteria, CA
93013. Any notice, direction, request or demand by the Company or any
Securityholder to or upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the Corporate Trust Office.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. The Trustee
may waive notice to it of any provision herein, and such waiver shall be deemed
to be for its convenience and discretion. Waivers of notice by Holders shall be
filed with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Company
and Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 OFFICERS' CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture 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 has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters or information which is in the possession of the
Company, upon the certificate, statement or opinion of or representations by an
officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the
Company or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
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SECTION 10.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS.
If the date of maturity of interest on or principal of the Securities or the
date fixed for redemption of any Security shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
SECTION 10.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST
INDENTURE ACT OF 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "incorporated provision"), such incorporated provision shall control.
SECTION 10.8 NEW YORK LAW TO GOVERN. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New
York, and for all purposes shall be construed in accordance with the laws of
said State, except as may otherwise be required by mandatory provisions of law.
SECTION 10.9 COUNTERPARTS. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.
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SECTION 11.1 RIGHT OF OPTIONAL REDEMPTION; PRICES. On or after
May 1, 2000, the Company at its option may, at any time, redeem all, or from
time to time any part of, the Securities upon payment of the optional redemption
prices set forth in the form of Security hereinabove recited, together with
accrued and unpaid interest to the date fixed for redemption.
In addition, at any time prior to May 1, 1999, the Company may
redeem up to 25% of the aggregate principal
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amount of the Securities then outstanding with the proceeds of a Public Equity
Offering within 90 days of such offering at a redemption price equal to 111.625%
of the principal amount of such Securities plus accrued and unpaid interest to
the redemption date; provided that at least $93.75 million in aggregate
principal amount of Securities remain outstanding immediately after giving
effect to such redemption.
SECTION 11.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS. Notice
of redemption to the holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities to be redeemed at the
option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
At least one business day prior to the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more paying agents (or, if
the Company is acting as its own paying agent, set aside, segregate and
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hold in trust as provided in Section 3.4) an amount of money sufficient to
redeem on the redemption date all the Securities so called for redemption at the
appropriate redemption price, together with accrued interest to the date fixed
for redemption. If less than all the outstanding Securities are to be redeemed
the Company will deliver to the Trustee at least 70 days prior to the date fixed
for redemption an Officers' Certificate stating the aggregate principal amount
of Securities to be redeemed.
If less than all the Securities are to be redeemed, the
Trustee shall select, either pro rata, by lot or by any other method it shall
deem fair and reasonable, Securities to be redeemed in whole or in part.
Securities may be redeemed in part in multiples of $1,000 only. The Trustee
shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
SECTION 11.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Company shall default in the payment of such
Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue and, except as provided in Sections 5.5 and 9.4, such
Securities shall cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Company at the applicable redemption
price, together with interest accrued thereon to the date fixed for redemption;
provided that any semi-annual payment of interest becoming due on the date fixed
for redemption shall be payable to the holders of such Securities registered as
such on the relevant Interest
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Record Date subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate borne
by the Security.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Company, a new Security
or Securities, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY
FOR SELECTION FOR REDEMPTION. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
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SECTION 12.1 COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE. The Company may at its option by resolution of the Board of
Directors, at any time, elect to have either Section 12.2 or Section 12.3
applied to the outstanding Securities upon compliance with the conditions set
forth below in this Article Twelve.
SECTION 12.2 DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the option provided in Section 12.1 in respect of this Section, the
Company shall be deemed to have been discharged from its obligations with
respect to the outstanding Securities on the date the conditions set forth in
Section 12.4 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the outstanding Securities and
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to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of holders of such Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of and interest
on such Securities when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 2.1, 2.2, 2.5, 2.6, 2.7, 2.8,
2.9, 2.11, 3.1, 3.2, 3.4 and 12.5 and with respect to the Trustee under Sections
5.7 and 5.11, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Twelve. Subject to compliance with this
Article Twelve, the Company may exercise its option under this Section 12.2
notwithstanding the prior exercise of its option under Section 12.3.
SECTION 12.3 COVENANT DEFEASANCE. Upon the Company's exercise
of the option provided in Section 12.1 in respect of this Section, (i) the
Company shall be released from its obligations under Sections 3.8 through 3.17,
inclusive, and clauses (iv) and (v) of Section 8.1, and (ii) the occurrence of
any event specified in Section 4.1(c) (with respect to Clauses (iv) or (v) of
Section 8.1 or with respect to any of Sections 3.8 through 3.17), in Section
4.1(d) and in Section 4.1(e) shall neither be deemed to be a default nor
susceptible of becoming an Event of Default on and after the date the conditions
set forth in Section 12.4 are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or clause, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
clause or by reason of any reference in any such Section or clause to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
SECTION 12.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to defeasance pursuant to Section 12.2, or
covenant defeasance pursuant to Section 12.3, of the then outstanding
Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose
of making the following
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payments, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of such Securities, (i) money in an
amount, or (ii) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (iii) a combination thereof,
sufficient, in the written opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge (without
consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in
respect thereof) and which shall be applied by the Trustee to pay and
discharge, the principal of and each instalment of interest on the
Securities on the maturity date of such principal or instalment of
interest or on such redemption date as shall have been irrevocably
designated to the Trustee under arrangements satisfactory to the
Trustee all in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(b) As a condition to defeasance under Section 12.2, the
Company shall have delivered to the Trustee
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an Opinion of Counsel stating that (x) the Company has received from,
or there has been published by, the Internal Revenue Service a ruling,
or (y) 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 shall confirm that, the holders of the
outstanding Securities will not recognize gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred.
(c) As a condition to covenant defeasance under Section 12.3,
the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the holders of the outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same times
as would have been the case if such deposit and covenant defeasance had
not occurred.
(d) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities, if then listed
on any securities exchange, will not be delisted as a result of such
deposit and defeasance or covenant defeasance, as applicable.
(e) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any securities of the Company.
(f) No Event of Default described in Section 4.01(f) or
4.01(g) shall have occurred at any time during the period ending on the
123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(g) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to
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defeasance or covenant defeasance as applicable, have been complied
with.
(i) The Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that (i) such defeasance or covenant
defeasance will not cause the Trustee or the trust arising from such
deposit to be subject to the Investment Company Act of 1940, as amended
and (ii) the holders of the Securities will have a valid perfected
first-priority security interest in the trust funds.
SECTION 12.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions
of Section 9.4, all money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 12.4 in respect
of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent) as the Trustee may determine, to the holders of
such Securities, of all sums due and to become due thereon in respect of
principal and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 12.4 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 Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the written request of the Company any money or U.S. Government
Obligations held by it as provided in Section 12.4 which, in the written opinion
of a nationally recognized firm of independent public accountants to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
SECTION 12.6. REINSTATEMENT. If the Trustee or the paying
agent is unable to apply any money in accordance with Section 12.5 by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
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obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to this Article Twelve
until such time as the Trustee or paying agent is permitted to apply all such
money in accordance with Section 12.5; provided that if the Company makes any
payment of principal of or interest on any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the holders
of such Securities to receive such payment from the money held by the Trustee or
the paying agent.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of May 2, 1996.
BENTON OIL AND GAS COMPANY,
as Issuer
By ____________________________
David H. Pratt
Vice President
[CORPORATE SEAL]
Attest:
By ____________________________
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By ____________________________
Teresita Glasgow
Trust Officer
[CORPORATE SEAL]
Attest:
By ____________________________
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STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 2nd day of May, 1996, before me personally came DAVID
H. PRATT, to me known, who, being by me duly sworn, did depose and say that he
is a Vice President of Benton Oil and Gas Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
__________________________
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 2nd day of May, 1996, before me personally came
TERESITA GLASGOW, to me known, who, being by me duly sworn, did depose and say
that she is Trust Officer of First Trust of New York, National Association, one
of the corporations described in and which executed the foregoing instrument;
that she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation, and that she signed her name thereto by
like authority.
__________________________
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EXHIBIT A
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
______, ____
First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Department
Re: Benton Oil and Gas Company (the "Company")
11 5/8% Senior Notes due 2003 (the "Securities")
------------------------------------------------
Dear Sirs:
In connection with our proposed purchase of $_______ aggregate
principal amount of the Securities, we confirm that:
1. We understand that any subsequent transfer of the
Securities is subject to certain restrictions and conditions set forth in the
Indenture dated as of May 2, 1996, relating to the Securities (the "Indenture")
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
2. We understand that the offer and sale of the Securities
have not been registered under the Securities Act, and that the Securities may
not be offered or sold except as permitted in the following sentence. We agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities within three years
after the original issuance of the Securities, we will do so only (A) to the
Company or any subsidiary thereof, (B) in accordance with Rule 144A under the
Securities Act to a "qualified institutional buyer" (as defined therein), (C) to
an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes to you a signed letter containing certain representations
and agreements relating to the restrictions on transfer of the Notes (the form
of which letter can be obtained from the Issuer or the Trustee) and, if such
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transfer is in respect of an aggregate principal amount of Notes of less than
$250,000, an opinion of counsel acceptable to the Company that such transfer is
in compliance with the Securities Act, (D) outside the United States in
accordance with Rule 904 of Regulation S under the Securities Act, (E) pursuant
to the exemption from registration provided by Rule 144 under the Securities
Act, or (F) pursuant to an effective registration statement under the Securities
Act, and we further agree to provide to any person purchasing any of the
Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
3. We understand that, on any proposed resale of any
Securities, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonable require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Securities purchased by us will
bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
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 we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official injury
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: _____________________
Authorized Signature
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EXHIBIT B
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
______, ____
First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Department
Re: Benton Oil and Gas Company (the "Company")
11 5/8% Senior Notes due 2003 (the "Securities")
------------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$________
aggregate principal amount of the Securities, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the Securities
Act of 1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in
the United States;
(2) at the time the buy order was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and
are irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with
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respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: _____________________
Authorized Signature
B-2