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EXHIBIT 4.1
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BELDEN & BLAKE CORPORATION
As Issuer
THE CANTON OIL & GAS COMPANY
PEAKE ENERGY, INC.
WARD LAKE DRILLING, INC.
TARGET OILFIELD PIPE & SUPPLY COMPANY
As Subsidiary Guarantors
9 7/8% SENIOR SUBORDINATED NOTES DUE 2007
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INDENTURE
Dated as of June 27, 1997
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LASALLE NATIONAL BANK
As Trustee
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CROSS-REFERENCE TABLE*
Trust Indenture Indenture
Act Section Section
310 (a)(1).................................................................................... 7.10
(a)(2).................................................................................... 7.10
(a)(3).................................................................................... N.A.
(a)(4).................................................................................... N.A.
(a)(5).................................................................................... 7.10
(b)....................................................................................... 7.10
(c)....................................................................................... N.A.
311 (a)....................................................................................... 7.11
(b)....................................................................................... 7.11
(c)....................................................................................... N.A.
312 (a)....................................................................................... 2.5
(b)....................................................................................... 12.3
(c)....................................................................................... 12.3
313 (a)....................................................................................... 7.6
(b)(1).................................................................................... N.A.
(b)(2).................................................................................... 7.7
(c)....................................................................................... 7.6; 12.2
(d)....................................................................................... 7.6
314 (a)....................................................................................... 4.3; 12.2
(b)....................................................................................... N.A.
(c)(1).................................................................................... 12.4
(c)(2).................................................................................... 12.4
(c)(3).................................................................................... N.A.
(d)....................................................................................... 10.3-10.5
(e)....................................................................................... 12.5
(f)....................................................................................... N.A.
315 (a)....................................................................................... 7.1
(b)....................................................................................... 7.5; 12.2
(c)....................................................................................... 7.1
(d)....................................................................................... 7.1
(e)....................................................................................... 6.11
316 (a)(last sentence)........................................................................ 2.9
(a)(1)(A)................................................................................. 6.5
(a)(1)(B)................................................................................. 6.4
(a)(2).................................................................................... N.A.
(b)....................................................................................... 6.7
(c)....................................................................................... 2.12
317 (a)(1).................................................................................... 6.8
(a)(2).................................................................................... 6.9
(b)....................................................................................... 2.4
318 (a)....................................................................................... 12.1
(b)....................................................................................... N.A.
(c)....................................................................................... 12.1
<FN>
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N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE................................................................ 1
Section 1.1. Definitions................................................................ 1
Section 1.2. Other Definitions.......................................................... 21
Section 1.3. Incorporation By Reference of Trust
Indenture Act.......................................................... 22
Section 1.4. Rules of Construction...................................................... 23
ARTICLE 2
THE NOTES......................................................... 23
Section 2.1. Form and Dating............................................................ 23
Section 2.2. Execution and Authentication............................................... 25
Section 2.3. Registrar and Paying Agent................................................. 25
Section 2.4. Paying Agent to Hold Money in Trust........................................ 26
Section 2.5. Holder Lists............................................................... 26
Section 2.6. Transfer and Exchange...................................................... 27
Section 2.7. Replacement Notes.......................................................... 34
Section 2.8. Outstanding Notes.......................................................... 34
Section 2.9. Temporary Notes............................................................ 35
Section 2.10. CUSIP Number............................................................... 35
Section 2.11. Cancellation............................................................... 35
Section 2.12. Defaulted Interest......................................................... 35
ARTICLE 3
REDEMPTION AND PREPAYMENT............................................... 36
Section 3.1. Notices to Trustee......................................................... 36
Section 3.2. Selection of Notes to Be Redeemed.......................................... 36
Section 3.3. Notice of Redemption....................................................... 37
Section 3.4. Effect of Notice of Redemption............................................. 38
Section 3.5. Deposit of Redemption Price................................................ 38
Section 3.6. Notes Redeemed in Part..................................................... 38
Section 3.7. Optional Redemption........................................................ 39
Section 3.8. Mandatory Redemption....................................................... 40
Section 3.9. Offer to Purchase By Application of
Excess Proceeds........................................................ 40
ARTICLE 4
COVENANTS...................................................... 42
Section 4.1. Payment of Notes........................................................... 42
Section 4.2. Maintenance of Office or Agency............................................ 43
Section 4.3. Commission Reports......................................................... 43
Section 4.4. Compliance Certificate..................................................... 44
Section 4.5. Taxes...................................................................... 44
Section 4.6. Stay, Extension and Usury Laws............................................. 45
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Section 4.7. Restricted Payments........................................................ 45
Section 4.8. Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries...................................... 48
Section 4.9. Incurrence of Indebtedness and Issuance
of Disqualified Stock.................................................. 49
Section 4.10. Asset Sales................................................................ 51
Section 4.11. Transactions with Affiliates............................................... 53
Section 4.12. Liens...................................................................... 54
Section 4.13. Offer to Repurchase Upon Change of
Control................................................................ 55
Section 4.14. Additional Subsidiary Guarantees........................................... 56
Section 4.15. Corporate Existence........................................................ 57
Section 4.16. No Senior Subordinated Debt................................................ 57
Section 4.17. Business Activities........................................................ 57
ARTICLE 5
SUCCESSORS.................................................. 57
Section 5.1. Merger, Consolidation, or Sale of
Substantially All Assets............................................... 57
Section 5.2. Successor Corporation Substituted;
Subsidiary Guarantors Confirmed........................................ 59
ARTICLE 6
DEFAULTS AND REMEDIES............................................ 59
Section 6.1. Events of Default.......................................................... 59
Section 6.2. Acceleration............................................................... 62
Section 6.3. Other Remedies............................................................. 62
Section 6.4. Waiver of Past Defaults.................................................... 63
Section 6.5. Control by Majority........................................................ 63
Section 6.6. Limitation on Suits........................................................ 63
Section 6.7. Rights of Holders of Notes to Receive
Payment................................................................ 64
Section 6.8. Collection Suit by Trustee................................................. 64
Section 6.9. Trustee May File Proofs of Claim........................................... 64
Section 6.10. Priorities................................................................. 65
Section 6.11. Undertaking for Costs...................................................... 66
ARTICLE 7
TRUSTEE................................................... 66
Section 7.1. Duties of Trustee.......................................................... 66
Section 7.2. Rights of Trustee.......................................................... 67
Section 7.3. Individual Rights of Trustee............................................... 69
Section 7.4. Trustee's Disclaimer....................................................... 69
Section 7.5. Notice of Defaults......................................................... 69
Section 7.6. Reports by Trustee to Holders of the
Notes.................................................................. 69
Section 7.7. Compensation and Indemnity................................................. 70
Section 7.8. Replacement of Trustee..................................................... 71
Section 7.9. Successor Trustee by Merger, etc. ......................................... 72
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Section 7.10. Eligibility; Disqualification.............................................. 72
Section 7.11. Preferential Collection of Claims
Against Company........................................................ 72
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................... 73
Section 8.1. Option to Effect Legal Defeasance or
Covenant Defeasance.................................................... 73
Section 8.2. Legal Defeasance and Discharge............................................. 73
Section 8.3. Covenant Defeasance........................................................ 73
Section 8.4. Conditions to Legal or Covenant
Defeasance............................................................. 74
Section 8.5. Deposited Money and Government
Securities to be Held in Trust; Other
Miscellaneous Provisions................................................... 76
Section 8.6. Repayment to Company....................................................... 76
Section 8.7. Reinstatement.............................................................. 77
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER....................................... 77
Section 9.1. Without Consent of Holders of Notes........................................ 77
Section 9.2. With Consent of Holders of Notes........................................... 78
Section 9.3. Compliance with Trust Indenture Act........................................ 80
Section 9.4. Revocation and Effect of Consents.......................................... 80
Section 9.5. Notation on or Exchange of Notes........................................... 80
Section 9.6. Trustee to Sign Amendment, etc. ........................................... 80
ARTICLE 10
SUBORDINATION....................................................... 81
Section 10.1. Agreement to Subordinate................................................... 81
Section 10.2. Certain Definitions........................................................ 81
Section 10.3. Liquidation; Dissolution; Bankruptcy....................................... 82
Section 10.4. Default on Designated Senior Debt.......................................... 84
Section 10.5. Acceleration of Notes...................................................... 85
Section 10.6. When Distribution Must Be Paid Over........................................ 85
Section 10.7. Notice by Company.......................................................... 86
Section 10.8. Subrogation................................................................ 86
Section 10.9. Relative Rights............................................................ 87
Section 10.10. Subordination May Not Be Impaired by
Company or the Subsidiary Guarantors....................................... 87
Section 10.11. Payment, Distribution or Notice to
Representative............................................................. 87
Section 10.12. Rights of Trustee and Paying Agent......................................... 88
Section 10.13. Authorization to Effect Subordination...................................... 88
Section 10.14. Amendments................................................................. 89
Section 10.15. No Waiver of Subordination Provisions...................................... 89
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ARTICLE 11
THE SUBSIDIARY GUARANTEES.................................................. 89
Section 11.1. The Subsidiary Guarantees.................................................. 89
Section 11.2. Execution and Delivery of Subsidiary
Guarantees............................................................. 90
Section 11.3. Subsidiary Guarantors May Consolidate,
etc., on Certain Terms................................................. 91
Section 11.4. Releases of Subsidiary Guarantees.......................................... 92
Section 11.5. Limitation on Subsidiary Guarantor
Liability.............................................................. 93
Section 11.6. "Trustee" to Include Paying Agent.......................................... 93
Section 11.7. Subordination of Subsidiary Guarantees..................................... 94
ARTICLE 12
MISCELLANEOUS......................................................... 94
Section 12.1. Trust Indenture Act Controls............................................... 94
Section 12.2. Notices.................................................................... 94
Section 12.3. Communication by Holders of Notes with
Other Holders of Notes................................................. 96
Section 12.4. Certificate and Opinion as to
Conditions Precedent................................................... 96
Section 12.5. Statements Required in Certificate or
Opinion................................................................ 96
Section 12.6. Rules by Trustee and Agents................................................ 97
Section 12.7. No Personal Liability of Directors,
Officers, Employees and Stockholders................................... 97
Section 12.8. Governing Law.............................................................. 97
Section 12.9. No Adverse Interpretation of Other
Agreements............................................................. 97
Section 12.10. Successors................................................................. 97
Section 12.11. Severability............................................................... 98
Section 12.12. Counterpart Originals...................................................... 98
Section 12.13. Table of Contents, Headings, Etc. ......................................... 98
EXHIBITS
Exhibit A FORM OF INITIAL NOTE
Exhibit B FORM OF EXCHANGE NOTE
Exhibit C FORM OF SUBSIDIARY GUARANTEE
Exhibit D FORM OF TRANSFEREE LETTER OF REPRESENTATION
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INDENTURE dated as of June 27, 1997 among Belden & Blake
Corporation, an Ohio corporation (the "Company"), as issuer, the Subsidiary
Guarantors (as hereinafter defined) as guarantors and LaSalle National Bank, as
trustee (the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree
as follows for the benefit of each other and for the equal and ratable benefit
of the Holders of the 9 7/8% Senior Subordinated Notes due 2007 of the Company
(the "Initial Notes"), and if and when issued in exchange for Initial Notes as
provided in the Registration Rights Agreement (as hereinafter defined), the
Company's 9 7/8% Senior Subordinated Notes due 2007 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.1. DEFINITIONS.
"Acquired Debt" means, with respect to any specified Person
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Acquisition" means the merger of BB Merger Corporation, a
newly organized company owned by the Investors and Johnson Rice & Company,
L.L.C., with and into the Company, with the Company being the surviving
corporation.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Applicable Premium" means, with respect to a Note at the
redemption date, the greater of (i) 1% of the principal amount of such Note and
(ii) the excess of (A) the present value at such time of (1) the redemption
price of such Note at June 15, 2002, as set forth in Section 3.7, plus (2) all
required interest payments (excluding accrued but unpaid interest) due on such
Note
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through June 15, 2002, computed using a discount rate equal to the Treasury Rate
plus 75 basis points, over (B) the then-outstanding principal amount of such
Note.
"Asset Sale" means (i) the sale, lease, conveyance or other
disposition by the Company or any of its Restricted Subsidiaries (but excluding
the creation of a Lien) of any assets including, without limitation, by way of a
sale and leaseback; provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company and its
Subsidiaries taken as a whole shall be governed by Sections 4.13 and/or 5.1
hereof and not by Section 4.10 hereof), and (ii) the issue or sale by the
Company or any of its Restricted Subsidiaries of Equity Interests of any of the
Company's Subsidiaries (including the sale by the Company or a Restricted
Subsidiary of Equity Interests in an Unrestricted Subsidiary), in the case of
either clause (i) or (ii), whether in a single transaction or a series of
related transactions (a) that have a fair market value in excess of $5.0 million
or (b) for net proceeds in excess of $5.0 million. Notwithstanding the
foregoing, the following shall not be deemed to be Asset Sales: (1) a transfer
of assets by the Company to a Wholly Owned Restricted Subsidiary of the Company
or by a Wholly Owned Restricted Subsidiary of the Company to the Company or to
another Wholly Owned Restricted Subsidiary of the Company, (2) an issuance of
Equity Interests by a Wholly Owned Restricted Subsidiary of the Company to the
Company or to another Wholly Owned Restricted Subsidiary of the Company, (3) the
making of a Permitted Investment or a Restricted Payment that is permitted by
Section 4.7, (4) the abandonment, farm-out, lease or sublease of undeveloped oil
and gas properties in the ordinary course of business, (5) the trade or exchange
by the Company or any Restricted Subsidiary of the Company of any oil and gas
property owned or held by the Company or such Restricted Subsidiary for any oil
and gas property or interest therein owned or held by another Person, including
any cash or Cash Equivalents necessary in order to achieve an exchange of
equivalent value; provided that any such cash or Cash Equivalents received by
the Company or such Restricted Subsidiary will be subject to the provisions
described in the second and third paragraphs in Section 4.10 which the Board of
Directors of the Company determines in good faith to be of approximately
equivalent value, (6) the sale or transfer of hydrocarbons or other mineral
products surplus or obsolete equipment in the ordinary course of business or (7)
the sale of oil and gas properties in connection with tax credit transactions
complying with ss.29 of the Internal Revenue Code.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale and leaseback transaction
(including any period for which such lease has been
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extended or may, at the option of the lessor, be extended to the extent the
lease payments during such extension period are required to be capitalized on a
balance sheet in accordance with GAAP).
"Bankruptcy Code" means Title 11 of the United States
Code, as amended.
"Board of Directors" means the Board of Directors of the
Company or a Subsidiary Guarantor, as applicable, or any authorized committee of
such Board of Directors.
"Borrowing Base" means, as of any date, the lesser of (i) $600
million or (ii) the aggregate amount of borrowing availability as of such date
under all Credit Facilities that determines availability on the basis of a
borrowing base or other asset-based calculation.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on a balance
sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation,
corporate stock, (ii) in the case of an association or business entity, any and
all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited), (iv) in the case of a limited liability
company or similar entity, any membership or similar interests therein and (v)
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distributions of assets of, the
issuing Person.
"Cash Equivalents" means (i) United States dollars, (ii)
securities issued or directly and fully guaranteed or insured by the United
States government or any agency or instrumentality thereof having maturities of
not more than one year from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with maturities not exceeding one
year and overnight bank deposits, in each case with any lender party to the New
Credit Agreement or with any domestic commercial bank having capital and surplus
in excess of $500 million, (iv) repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clauses (ii)
and (iii) above entered into with any financial institution meeting the
qualifications specified in clause (iii) above, (v) commercial paper having a
rating of at least P1 from Moody's or a rating of at least A1 from S&P, and (vi)
investments in money market or other mutual funds
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substantially all of whose assets comprise securities of the types described in
clauses (ii) through (v) above.
"Change of Control" means the occurrence of any of the
following:
(i) prior to the first public offering of Voting Stock of the
Company, either (x) Permitted Holders cease to be the "beneficial
owner(s)" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 35% of the total voting power of
the Voting Stock of the Company, or (y) Permitted Holders cease to be
entitled by voting power, contract or otherwise to elect or cause the
election of directors of the Company having a majority of the total
voting power of the Board or Directors, in each case, whether as a
result of issuance of securities of the Company, any merger,
consolidation, liquidation or dissolution of the Company, any direct or
indirect transfer of securities by any Permitted Holder or otherwise
(for purposes of this clause (i) and clause (ii) below, Permitted
Holders shall be deemed to beneficially own any Voting Stock of an
entity (the "specified entity") held by any other entity (the "parent
entity") so long as the Permitted Holders beneficially own, directly or
indirectly, a majority of the Voting Stock of the parent entity;
(ii) following the first public offering of Voting Stock of
the Company, any "Person"(as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Permitted Holders,
is or becomes the beneficial owner (as defined in clause (i) above,
except that a Person shall be deemed to have "beneficial ownership" of
all shares that any such Person has the right to acquire within one
year), directly or indirectly, of more than 50% of the Voting Stock of
the Company; provided that the Permitted Holders beneficially own (as
defined in clause (i) above), directly or indirectly, in the aggregate
a lesser percentage of the Voting Stock of the Company than such other
Person and do not have the right or ability by voting power, contract
or otherwise to elect or designate for election a majority of the Board
of Directors;
(iii) the sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole to any
"Person" or group of related Persons (a "Group") other than a Permitted
Holder; (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act);
(iv) the adoption of a plan relating to the liquidation
or dissolution of the Company; and
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(v) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a vote of a majority of the directors of the
Company then still in office who were either directors at the beginning
of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of Directors then in office.
"Closing Date" means the date of the closing of the sale of
the Notes offered pursuant to the Offering.
"Commission" means the Securities and Exchange
Commission.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the Consolidated Net Income of such Person and its Restricted
Subsidiaries for such period plus (i) an amount equal to any extraordinary or
non-recurring loss, and any net loss realized in connection with (a) an Asset
Sale (together with any related provision for taxes) and (b) the disposition of
any securities by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Restricted
Subsidiaries, to the extent such losses were included in computing such
Consolidated Net Income, plus (ii) provision for taxes based on income or
profits of such Person and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was included in computing such Consolidated
Net Income, plus (iii) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
imputed interest with respect to Attributable Debt, commissions, discounts and
other fees and charges incurred in respect of letters of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Interest Rate
Hedging Agreements), to the extent that any such expense was included in
computing such Consolidated Net Income, plus (iv) depreciation, depletion and
amortization expenses (including amortization of goodwill and other intangibles)
for such Person and its Restricted Subsidiaries for such period to the extent
that such depreciation, depletion and amortization expenses were included in
computing such Consolidated Net Income, plus (v) exploration expenses for such
Person and its Restricted Subsidiaries for such period to the extent such
exploration expenses were included in computing such Consolidated Net Income,
plus (vi) costs incurred in connection with acquisitions that would be eligible
for capitalization treatment under GAAP, but have been expensed at the time of
incurrence, plus (vii) other
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non-cash charges (excluding any such non-cash charge to the extent that it
represents an accrual of or reserve for cash charges in any future period or
amortization of a prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the extent that such
other non-cash charges were included in computing such Consolidated Net Income,
in each case, on a consolidated basis and determined in accordance with GAAP.
Notwithstanding the foregoing, the provision for taxes on the income or profits
of, and the depreciation, depletion and amortization and other non-cash charges
and expenses of, a Restricted Subsidiary of the relevant Person shall be added
to Consolidated Net Income to compute Consolidated Cash Flow only to the extent
(and in the same proportion) that the Net Income of such Restricted Subsidiary
was included in calculating the Consolidated Net Income of such Person and only
if a corresponding amount would be permitted at the date of determination to be
dividended to such Person by such Restricted Subsidiary without prior
governmental approval (that has not been obtained), and without direct or
indirect restriction pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Restricted Subsidiary or its stockholders.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate of the Net Income of such Person and its
Restricted Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that (i) the Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for by the
equity method of accounting shall be included only to the extent of the amount
of dividends or distributions paid in cash to the referent Person or a Wholly
Owned Restricted Subsidiary thereof, (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders, (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded and (iv) the cumulative effect of a change
in accounting principles shall be excluded.
"Consolidated Net Worth" means the total of the amounts shown
on the balance sheet of the Company and its consolidated Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, as of
the end of the most recent fiscal quarter of the Company ending prior to the
taking of any action for the purpose of which the determination is being made
and for which internal financial statements are available (but in no
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event ending more than 135 days prior to the taking of such action), as (i) the
par or stated value of all outstanding Capital Stock of the Company, plus (ii)
paid-in capital or capital surplus relating to such Capital Stock, plus (iii)
any retained earnings or earned surplus, less (a) any accumulated deficit (in
each case excluding any minority interest) and (b) any amounts attributable to
Disqualified Stock.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 12.2 hereof or such other address as
to which the Trustee may give notice to the Company.
"Credit Facilities" means, with respect to the Company, one or
more debt facilities (including, without limitation, the New Credit Agreement)
or commercial paper facilities with banks or other institutional lenders
providing for revolving credit loans, term loans, production payment financing,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
Indebtedness under Credit Facilities outstanding on the date on which the Notes
are first issued and authenticated under this Indenture (after giving effect to
the use of proceeds thereof) shall be deemed to have been incurred on such date
in reliance on the exception provided by clause (b) of the definition of
Permitted Indebtedness set forth in Section 4.9 hereof.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Depository" means, with respect to the Notes issued in the
form of one or more Global Notes, The Depository Trust Company or another Person
designated as Depository by the Company, which must be a clearing agency
registered under the Exchange Act.
"Designated Senior Debt" means (i) the New Credit Agreement
and (ii) any other Senior Debt permitted under this Indenture which, at the date
of determination, has an aggregate principal amount outstanding of, or under
which, at the date of determination, the holders thereof are committed to lend
up to, at least $25 million and is specifically designated by the Company in the
instrument evidencing or governing such Senior Debt as "Designated Senior Debt"
for purposes of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible or for which
it is exchangeable) or upon the happening of any event, matures or is
mandatorily redeemable for any consideration other than Capital Stock, pursuant
to a sinking
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fund obligation or otherwise, is convertible or is exchangeable for Indebtedness
or Disqualified Stock or redeemable for any consideration other than Capital
Stock at the option of the holder thereof, in whole or in part, in each case on
or prior to the date that is 91 days after (x) the date on which the Notes
mature or (y) on which there are no Notes outstanding.
"Dollar-Denominated Production Payments" means production
payment obligations recorded as liabilities in accordance with GAAP, together
with all undertakings and obligations in connection therewith.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) the consolidated interest expense
of such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of original issue discount,
non-cash interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated with Capital
Lease Obligations, imputed interest with respect to Attributable Debt,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Interest Rate Hedging Agreements); (ii) the consolidated interest expense of
such Person and its Restricted Subsidiaries that was capitalized during such
period; (iii) any interest expense on Indebtedness of another Person that is
guaranteed by such Person or any of its Restricted Subsidiaries or secured by a
Lien on assets of such Person or any of its Restricted Subsidiaries (whether or
not such guarantee or Lien is called upon) and (iv) the product of (a) all cash
dividend payments (and non-cash dividend payments in the case of a Person that
is a Restricted Subsidiary, unless paid in Equity Interests that are not
Disqualified Stock) on any series of preferred stock of such Person or any of
its Restricted Subsidiaries, times (b) a fraction, the numerator of which is one
and the denominator of which is one minus the then current combined federal,
state and local statutory tax rate of such Person, expressed as a decimal, in
each case, on a consolidated basis and in accordance with GAAP. Notwithstanding
the foregoing, when calculating the amount of Fixed Charges, any interest
expense attributable to any Person shall be included in such calculation to the
same extent the Net Income of such Person was included in the calculation of
Consolidated Net Income in connection with calculating the Fixed Charge Coverage
Ratio.
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"Fixed Charge Coverage Ratio" means with respect to any Person
for any period, the ratio of the Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs, assumes, guarantees or
redeems Indebtedness (other than revolving credit borrowings) or issues or
redeems preferred stock subsequent to the commencement of the period for which
the Fixed Charge Coverage Ratio is being calculated but prior to the date on
which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect to such incurrence, assumption, guarantee or redemption
of Indebtedness, or such issuance or redemption of preferred stock, as if the
same had occurred at the beginning of the applicable four-quarter reference
period. In addition, for purposes of making the computation referred to above,
(i) acquisitions that have been made by the referent Person or any of its
Restricted Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter reference
period or subsequent to such reference period and on or prior to the Calculation
Date (including, without limitation, any acquisition to occur on the Calculation
Date) shall be deemed to have occurred on the first day of the four-quarter
reference period and any cost savings or expense reductions attributable at the
time of such computation or to be attributable in the future to such
acquisition, shall be included in such computation, to the extent that such
adjustments would be permitted under Article 11 of Regulation S-X and
Consolidated Cash Flow for such reference period shall be calculated without
giving effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income, (ii) the net proceeds of Indebtedness incurred or
Disqualified Stock issued by the referent Person pursuant to the first paragraph
of Section 4.9 hereof during the four-quarter reference period or subsequent to
such reference period and on or prior to the Calculation Date shall be deemed to
have been received by the referent Person or any of its Restricted Subsidiaries
on the first day of the four-quarter reference period and applied to its
intended use on such date, (iii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded and
(iv) the Fixed Charges attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges shall not be obligations of the referent
Person or any of its Restricted Subsidiaries following the Calculation Date.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such
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other entity as have been approved by a significant segment of the accounting
profession as of the date hereof.
"Government Securities" means securities that are (a) direct
obligations of the United States of America for the timely payment of which its
full faith and credit is pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act), as custodian with respect to any such Government
Security or a specific payment of principal of or interest on any such
Government Security held by such custodian for the account of the holder of such
depository receipt; provided, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the Government Security or the specific payment of principal of or interest on
the Government Security evidenced by such depository receipt.
"guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness.
"Holder" means a Person in whose name a Note is
registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, without
duplication, (a) any indebtedness of such Person, whether or not contingent, (i)
in respect of borrowed money, (ii) evidenced by bonds, notes, debentures or
similar instruments, (iii) evidenced by letters of credit (or reimbursement
agreements in respect thereof) or banker's acceptances, (iv) representing
Capital Lease Obligations, (v) representing the balance deferred and unpaid of
the purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable, (vi) representing any obligations in respect
of Interest Rate Hedging Agreements or Oil and Gas Hedging Contracts, and (vii)
in respect of any Production Payment, (b) all indebtedness of others secured by
a Lien on any asset of such Person (whether or not such indebtedness is assumed
by such Person), (c) obligations of such Person in respect of production
imbalances, (d) Acquired Debt of such Person, (e) Attributable Debt of such
Person, and (f) to the extent not otherwise included in the foregoing, the
guarantee by such Person of any indebtedness of any other Person.
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"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Initial Purchasers" means Chase Securities Inc., BT
Securities Corporation and NationsBanc Capital Markets, Inc. as
initial purchasers of the Notes.
"Institutional Accredited Investors" means an institutional
"accredited investor" within the meaning of Rules 501(a)(1), (2), (3) or (7)
under the Securities Act.
"Interest Rate Hedging Agreements" means, with respect to any
Person, the obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees of Indebtedness or other
obligations, but excluding trade credit) or capital contributions, purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided that
the following shall not constitute Investments: (i) an acquisition of assets,
Equity Interests or other securities by the Company for consideration consisting
of common equity securities of the Company, (ii) Interest Rate Hedging
Agreements entered into in accordance with the limitations set forth in clause
(g) of the second paragraph of Section 4.9, (iii) Oil and Gas Hedging Agreements
entered into in accordance with the limitations set forth in clause (h) of the
second paragraph of Section 4.9 and (iv) endorsements of negotiable instruments
and documents in the ordinary course of business. If the Company or any
Restricted Subsidiary of the Company sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary of the Company such
that, after giving effect to any such sale or disposition, such entity is no
longer a Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Subsidiary not sold or disposed of.
"Investors" means TPG II, TPG Parallel II, L.P., and
TPG Investors II, L.P.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, the City of Chicago or at a place
of payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of payment, payment may
be
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made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention agreement, any
lease in the nature thereof, any option or other agreement to sell or give a
security interest in and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"Moody's" means Moody's Investors Service, Inc. and its
successors.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain or loss, together with any related provision for taxes on such gain or
loss, realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary or nonrecurring gain or
loss, together with any related provision for taxes on such extraordinary or
nonrecurring gain or loss.
"Net Proceeds" means the aggregate cash proceeds received by
the Company or any of its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale, but
excluding cash amounts placed in escrow, until such amounts are released to the
Company), net of the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting, investment banking and other professional
fees and expenses, and sales commissions) and any relocation expenses incurred
as a result thereof, taxes paid or payable as a result thereof (after taking
into account any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of Indebtedness
(other than Indebtedness under any Senior Debt) secured by a Lien on the asset
or assets that were the subject of such Asset Sale and any reserve for
adjustment in respect of the sale price of such asset or assets established in
accordance with GAAP and any reserve established for future liabilities.
"New Credit Agreement" means that certain Credit Agreement,
dated as of June 27, 1997, among the Company, The Chase Manhattan Bank, N.A., as
Agent and lender and the other parties thereto, providing for up to $200 million
of
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Indebtedness, including any related notes, guarantees, security or pledge
agreements, collateral documents, instruments and agreements executed in
connection therewith, and in each case as amended, restated, modified, renewed,
refunded, replaced or refinanced, in whole or in part, from time to time,
whether or not with the same lenders or agents; provided that no such
amendments, restatements, modifications, renewals, refundings, replacements or
refinancings shall result in provisions for Indebtedness or outstanding
Indebtedness in excess of $200 million, and provided further, that the total
amount of Indebtedness outstanding under the New Credit Agreement and all
documents executed in connection therewith and referred to in this definition
shall be no greater than $200 million in the aggregate.
"Non-Recourse Debt" means Indebtedness (i) as to which neither
the Company nor any of its Restricted Subsidiaries (a) provides any guarantee or
credit support of any kind (including any undertaking, guarantee, indemnity or
agreement or instrument that would constitute Indebtedness) or (b) is directly
or indirectly liable (as a guarantor or otherwise); (ii) no default with respect
to which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity; and (iii) the explicit terms of which provide that there is
no recourse against any of the assets of the Company or its Restricted
Subsidiaries.
"Note Custodian" means the Trustee or the Registrar, as
custodian with respect to the Notes in global form, or any successor entity
thereto or any entity acting as custodian with respect to Notes in global form.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Offering" means the offering of the Notes by the
Company.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary, the Assistant Secretary or any Vice-President of
such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company, by two Officers of the Company, one of whom must be the
principal executive officer, the principal
20
14
financial officer, the treasurer or the principal accounting officer of the
Company, that meets the requirements of Section 12.5 hereof.
"Oil and Gas Business" means (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon properties, (ii) the gathering, marketing, distribution, treating,
processing, storage, selling and transporting of any production from such
interests or properties and the marketing of oil and gas obtained from unrelated
Persons, (iii) any business relating to exploration for or development,
production, treatment, processing, storage, transportation, gathering or
marketing of oil, gas and other minerals and products produced in association
therewith, (iv) any business relating to oilfield sales and service and (v) any
activity that is ancillary to or necessary or appropriate for the activities
described in clauses (i) through (iv) of this definition.
"Oil and Gas Hedging Contracts" means any oil and gas purchase
or hedging agreement, and other agreement or arrangement, in each case, that is
designed to provide protection against oil and gas price fluctuations.
"Opinion of Counsel" means an opinion from legal counsel who
is reasonably acceptable to the Trustee, that meets the requirements of Section
12.5 hereof. The counsel may be an employee of or counsel to the Company, any
Subsidiary Guarantor or the Trustee.
"Pari Passu Indebtedness" means indebtedness which ranks pari
passu in right of payment to the Notes.
"Permitted Holders" means the Investors, any investment
partnership or fund managed by the principals of TPG II, any partners of the
Investors, members of their immediate family and trusts for the benefit of
members of their immediate family, their respective Affiliates and any Person
acting in the capacity of an underwriter in connection with a public or private
offering of the Company's Capital Stock.
"Permitted Indebtedness" has the meaning given in the
covenant described in Section 4.9
"Permitted Investments" means (a) any Investment in the
Company or in a Wholly Owned Restricted Subsidiary of the Company; (b) any
Investment in Cash Equivalents or securities issued or directly and fully
guaranteed or insured by the United States government or any agency or
instrumentality thereof having maturities of not more than one year from the
date of acquisition; (c) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person if, as a result of such Investment and any
related transactions that at the time of such Investment are contractually
mandated to occur, (i) such Person
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becomes a Wholly Owned Restricted Subsidiary of the Company or (ii) such Person
is merged, consolidated or amalgamated with or into, or transfers or conveys all
or substantially all of its assets to, or is liquidated into, the Company or a
Wholly Owned Restricted Subsidiary of the Company; (d) any Investment made as a
result of the receipt of non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.9 hereof or not constituting an
Asset Sale by reason of the $5 million threshold contained in the definition
thereof; (e) other Investments in any Person or Persons having an aggregate fair
market value (measured on the date each such Investment was made and without
giving effect to subsequent changes in value), when taken together with all
other Investments made pursuant to this clause (e) that are at the time
outstanding, not to exceed the greater of (i) $75 million or (ii) 15% of the
Company's Total Assets at the time such Investment is made; (f) any Investment
acquired by the Company in exchange for Equity Interests in the Company (other
than Disqualified Stock), (g) shares of Capital Stock received in connection
with any good faith settlement of a bankruptcy proceeding involving a trade
creditor, (h) Interest Rate Hedging Agreements, (i) loans and advances to
employees in the ordinary course of business for bona fide business purposes,
and (j) entry into operating agreements, joint ventures, partnership agreements,
working interests, royalty interests, mineral leases, processing agreements,
farm-out agreements, contracts for the sale, transportation or exchange of oil
and natural gas, unitization agreements, pooling arrangements, area of mutual
interest agreements, production sharing agreements or other similar or customary
agreements, transactions, properties, interests or arrangements, and Investments
and expenditures in connection therewith or pursuant thereto, in each case made
or entered into in the ordinary course of the Oil and Gas Business, excluding
however, Investments in corporations other than any Investment received pursuant
to the provisions set forth in Section 4.10.
"Permitted Liens" means (i) Liens securing Indebtedness of a
Subsidiary or Liens securing Senior Debt that is outstanding on the date of
issuance of the Notes (after giving effect to the Transaction) and Liens
securing Senior Debt that is permitted by the terms of this Indenture to be
incurred; (ii) Liens in favor of the Company; (iii) Liens on property existing
at the time of acquisition thereof by the Company or any Subsidiary of the
Company and Liens on property or assets of a Subsidiary existing at the time it
became a Subsidiary, provided that such Liens were in existence prior to the
contemplation of the acquisition and do not extend to any assets other than the
acquired property or the property of the acquired Subsidiary; (iv) Liens
incurred or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance or other kinds of social security,
or to secure the payment or performance of tenders, statutory or regulatory
obligations, surety or appeal bonds, performance bonds or other obligations of a
like nature incurred in the ordinary course of business (including lessee or
22
16
operator obligations under statutes, governmental regulations or instruments
related to the ownership, exploration and production of oil, gas and minerals on
state or federal lands or waters); (v) Liens existing on the date of this
Indenture (after giving effect to the Transaction); (vi) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (vii) prejudgment liens and statutory liens of landlords,
mechanics, suppliers, vendors, warehousemen, carriers or other like Liens
arising in the ordinary course of business; (viii) judgment Liens not giving
rise to an Event of Default so long as any appropriate legal proceeding that may
have been duly initiated for the review of such judgment shall not have been
finally terminated or the period within which such proceeding may be initiated
shall not have expired; (ix) Liens on, or related to, properties or assets to
secure all or part of the costs incurred in the ordinary course of the Oil and
Gas Business for the exploration, drilling, development, production, processing,
transportation, marketing, storage or operation thereof; (x) Liens on pipeline
or pipeline facilities that arise under operation of law; (xi) Liens arising
under operating agreements, joint venture agreements, partnership agreements,
oil and gas leases, farm-out agreements, division orders, contracts for the
sale, transportation or exchange of oil or natural gas, unitization and pooling
declarations and agreements, area of mutual interest agreements and other
agreements that are customary in the Oil and Gas Business; (xii) Liens reserved
in oil and gas mineral leases for bonus or rental payments and for compliance
with the terms of such leases, (xiii) Liens securing the Notes, (xiv) Liens
constituting survey exceptions, encumbrances, easements, and reservations of,
and rights to others for, rights-of-way, zoning and other restrictions as to the
use of real properties, and minor defects of title which, in the case of any of
the foregoing, do not secure the payment of borrowed money, and in the aggregate
do not materially adversely affect the value of the assets of the Company and
its Restricted Subsidiaries, taken as a whole, or materially impair the use of
such properties for the purposes for which such properties are held by the
Company or such Subsidiaries, and (xv) Liens not otherwise permitted by clauses
(i) through (xiii) that are incurred in the ordinary course of business of the
Company or any Subsidiary with respect to obligations that do not exceed $5
million at any one time outstanding.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness (other than Indebtedness incurred under a Credit
Facility) of the Company or any of its Restricted Subsidiaries; provided that:
(i) the principal amount of such Permitted Refinancing Indebtedness
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does not exceed the principal amount of the Indebtedness so extended,
refinanced, renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith); (ii) such Permitted
Refinancing Indebtedness has a final maturity date on or later than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Notes, such Permitted Refinancing
Indebtedness has a final maturity date later than the final maturity date of,
and is subordinated in right of payment to, the Notes on terms at least as
favorable taken as a whole to the Holders of the Notes as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Production Payments" means Dollar-Denominated
Production Payments and Volumetric Production Payments, collectively.
"Purchase Agreement" means the agreement, dated June 23, 1997,
among the Company and the Initial Purchasers relating to the Offering.
"QIB" means any "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act").
"Registered Exchange Offer" means the offer to exchange the
Initial Notes for the Exchange Notes issued under a registration statement filed
pursuant to the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the exchange and
registration rights agreement, dated June __, 1997, among the Company and the
Initial Purchasers.
"Repurchase Offer" means an offer made by the Company to
purchase all or any portion of a Holder's Notes pursuant to Section 4.10 or 4.13
hereof.
"Responsible Officer" when used with respect to the Trustee,
means any officer within the Corporate Trust Department of the Trustee (or any
successor group of the Trustee) or any other officer of the Trustee customarily
performing functions
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similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Subsidiary" means any direct or indirect
Subsidiary of the Company that is not an Unrestricted Subsidiary.
"S&P" means Standard & Poor's Ratings Group and its
successors.
"Securities" means the securities issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as
amended.
"Shelf Registration Statement" has the meaning ascribed to
such term in the Registration Rights Agreement.
"Significant Subsidiary" means each Subsidiary that for the
most recent fiscal year of such Subsidiary had consolidated revenues greater
than $10 million or as at the end of such fiscal year had assets or liabilities
greater than $10 million.
"Subordinated Indebtedness" means any Indebtedness of the
Company or any Restricted Subsidiary (whether outstanding on the date of the
issuance of the Notes or thereafter incurred) which is subordinate or junior in
right of payment to the Notes pursuant to a written agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such Person or of one or
more Subsidiaries of such Person (or any combination thereof).
"Subsidiary Guarantee" means any guarantee of the obligations
of the Company under this Indenture and the Notes by any Subsidiary Guarantor in
accordance with the provisions of this Indenture.
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"Subsidiary Guarantors" means each Restricted Subsidiary of
the Company existing on the date of this Indenture (such Subsidiaries being The
Canton Oil & Gas Company, Peake Energy, Inc., Ward Lake Drilling, Inc. and
Target Oilfield Pipe & Supply Company), and any future Restricted Subsidiary of
the Company that incurs a Subsidiary Guarantee in accordance with the provisions
of this Indenture, and, in each case, their respective successors and assigns.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Total Assets" means, with respect to any Person, the total
consolidated assets of such Person and its Restricted Subsidiaries, as shown on
the most recent balance sheet of such Person.
"TPG II" means TPG Partners II, L.P.
"Transaction" means collectively, the Acquisition, the
Offering, the execution of the New Credit Agreement and an equity investment by
the Investors, and the net proceeds therefrom used to consummate the
transactions contemplated by the Acquisition, the repayment of certain
indebtedness of the Company and the payment of related fees and expenses.
"Transaction Advisory Agreement" means the agreement between
the Company and TPG II pursuant to which TPG II will receive financial advisory
fees as compensation for its services as a financial advisor in connection with
the Transaction and future transactions (as described therein).
"Transfer Restricted Securities" means Securities that bear or
are requested to bear the legend set forth in Section 2.6 hereof.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15(519) which has become publicly available at least two Business Days prior
to the redemption date (or, if such Statistical Release is no longer published,
any publicly available source or similar market data)) most nearly equal to the
period from the redemption date to June 15, 2002; provided that if the period
from the redemption date to June 15, 2002 is not equal to the constant maturity
of a United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the period
from the redemption date to June 15, 2002 is less than one year, the weekly
average yield on actually traded United States
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Treasury securities adjusted to a constant maturity of one year shall be used.
"Trustee" means the party named as such in the preamble to
this Indenture until a successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the successor serving
hereunder.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company which at the time of determination shall be an Unrestricted Subsidiary
(as designated by the Board of Directors of the Company, as provided below) and
(ii) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary of the Company (including any newly
acquired or newly formed Subsidiary or a Person becoming a Subsidiary through
merger or consolidation or Investment therein) to be an Unrestricted Subsidiary
only if: (a) such Subsidiary does not own any Capital Stock of, or own or hold
any Lien on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (b) all the Indebtedness of such Subsidiary shall at the date of
designation, and will at all times thereafter consist of, Non-Recourse Debt; (c)
the Company certifies that such designation was permitted by Section 4.7; (d)
such Subsidiary, either alone or in the aggregate with all other Unrestricted
Subsidiaries, does not operate, directly or indirectly, all or substantially all
of the business of the Company and its Subsidiaries; (e) such Subsidiary does
not, directly or indirectly, own any Indebtedness of or Equity Interest in, and
has no Investments in, the Company or any Restricted Subsidiary; (f) such
Subsidiary is a Person with respect to which neither the Company nor any of its
Restricted Subsidiaries has any direct or indirect obligation (1) to subscribe
for additional Equity Interests or (2) to maintain or preserve such Person's
financial condition or to cause such Person to achieve any specified levels of
operating results; and (g) on the date such Subsidiary is designated an
Unrestricted Subsidiary, such Subsidiary is not a party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary with terms substantially less favorable to the Company or such
Restricted Subsidiary than those that might have been obtained from Persons who
are not Affiliates of the Company. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by filing with the
Trustee a resolution of the Board of Directors of the Company giving effect to
such designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Indenture and any Indebtedness of such Subsidiary shall be
deemed to be incurred as of such date. The Board of Directors of the Company may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided,
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that (1) immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing or would occur as a
consequence thereof and the Company could incur at least $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) pursuant to Section 4.9 on a pro
forma basis taking into account such designation and (2) such Subsidiary
executes a Subsidiary Guarantee pursuant to Section 11.4 of this Indenture.
"Volumetric Production Payments" means production payment
obligations recorded as deferred revenue in accordance with GAAP, together with
all undertakings and obligations in connection therewith.
"Voting Stock" of an entity means all classes of Capital Stock
of such entity then outstanding and normally entitled to vote in the election of
directors or all interests in such entity with the ability to control the
management or actions of such entity.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned, directly or indirectly, by such Person or by one or
more Wholly Owned Restricted Subsidiaries of such Person.
Section 1.2. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"............................................ 4.11
"Asset Sale Offer"................................................. 3.9
"Bankruptcy Law"................................................... 10.2
"Cash Consolidation"............................................... 4.10
"Change of Control Offer".......................................... 4.13
"Change of Control Payment"........................................ 4.13
"Change of Control Payment Date"................................... 4.13
"Change of Control Redemption Payment"............................. 3.7
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"Closing Date"..................................................... 2.1
"Common Stock"..................................................... 3.7
"Covenant Defeasance".............................................. 8.3
"Custodian"........................................................ 6.1
"DTC".............................................................. 2.3
"Definitive Notes"................................................. 2.1
"Event of Default"................................................. 6.1
"Excess Proceeds".................................................. 4.10
"Global Note" ..................................................... 2.1
"Global Note Holder"............................................... 2.1
"incur"............................................................ 4.9
"Legal Defeasance"................................................. 8.2
"Notice of Default"................................................ 6.1
"Offer Amount"..................................................... 3.9
"Offer Period"..................................................... 3.9
"Paying Agent"..................................................... 2.3
"Payment Blockage Notice".......................................... 10.4
"Payment Default".................................................. 6.1
"Permitted Indebtedness"........................................... 4.9
"Purchase Date".................................................... 3.9
"Registrar"........................................................ 2.3
"Restricted Payments".............................................. 4.7
"Senior Debt"...................................................... 10.2
Section 1.3. INCORPORATION BY REFERENCE OF TRUST
INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" with respect to the Notes means the Company and with
respect to the Subsidiary Guarantees means the Subsidiary Guarantors and any
successor obligor upon the Notes and the Subsidiary Guarantees, respectively.
All other terms used in this indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by rule enacted by
the Commission under the TIA have the meanings so assigned to them.
Section 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
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(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time.
ARTICLE 2
THE NOTES
Section 2.1. FORM AND DATING.
The Initial Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto, the terms
of which are incorporated herein and made part of this Indenture. Any Exchange
Notes and the Trustee's certificate of authentication shall be substantially in
the form of Exhibit B, the terms of which are incorporated herein and made part
of this Indenture. The Subsidiary Guarantees of the Subsidiary Guarantors shall
be substantially in the form of Exhibit C hereto, the terms of which are
incorporated here in and made part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its issuance and shall show the date
of its authentication. The Notes will be fully registered as to principal and
interest in minimum denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
(a) GLOBAL NOTES. The Initial Notes are being offered
and sold by the Company pursuant to the Purchase Agreement.
Initial Notes offered and sold to QIBs in accordance with Rule
144A under the Securities Act ("RULE 144A") as provided in the Purchase
Agreement, shall be issued initially in the form of one or more permanent Global
Notes in definitive, fully registered form without interest coupons with the
Global Securities Legend and Restricted Securities Legend called for by Exhibit
A hereto (each, a "GLOBAL NOTE"), which shall be deposited on behalf of the
Initial Purchasers with the Trustee, as custodian for the Depositary, and
registered in the name of Cede & Co., as nominee of the Depository or will
remain in the
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custody of the Trustee pursuant to the FAST Balance Certificate Agreement
between DTC and the Trustee. The Global Note or Notes will be duly executed by
the Company and authenticated by the Trustee as hereinafter provided. Secondary
sales to Institutional Accredited Investors who are not QIBs will be reflected
in a separate Global Note. The aggregate principal amount of the Global Note may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as Note Custodian, and the Depository or its nominee as
hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply
only to Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.1(b), authenticate and deliver initially one or more Global
Notes that (i) shall be registered in the name of the Depository for such Global
Note or Global Notes or the nominee of such Depository and (ii) shall be held by
the Trustee as custodian for the Depository. After the issuance of Exchange
Notes under a Registered Exchange Offer, the Trustee shall have no duty to hold
any Global Note as custodian for the Depository or any other Security registered
in the name of the Depository or a nominee of the Depository.
Members of, or participants in, the Depository ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by the Depository or by the Trustee as the custodian
of the Depository or under such Global Note, and the Depository may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Note for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of a
holder of a beneficial interest in any Global Note.
(c) CERTIFICATED SECURITIES. Except as otherwise provided
herein, owners of beneficial interests in Global Notes will not be entitled to
receive physical delivery of certificated Securities. Purchasers of Initial
Notes who are not QIBs or Institutional Accredited Investors (referred to herein
as the "NON-GLOBAL PURCHASERS") will receive certificated Initial Notes bearing
the Restricted Securities Legend set forth in Exhibit A hereto ("DEFINITIVE
NOTES"); PROVIDED, HOWEVER, that upon transfer of such certificated Securities
to a QIB or Institutional Accredited Investor, such certificated Securities
will, unless the relevant Global Note has previously been exchanged, be
exchanged for an interest in a Global Note pursuant to the provisions of Section
2.6 hereof. Definitive Notes will
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include the Restricted Securities Legend unless removed in accordance with this
Section 2.1(c) or Section 2.6(g) hereof.
Section 2.2. EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes and may
be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
(1) Initial Notes for original issue in an aggregate principal amount of $225.0
million, and (2) Exchange Notes for issue only in a Registered Exchange Offer,
pursuant to the Registration Rights Agreement, in exchange for Initial Notes of
an equal principal amount, in each case upon a written order of the Company
signed by two Officers. Such order shall specify the amount of the Notes to be
authenticated, the date on which the original issue of Notes is to be
authenticated and whether the Notes are to be Initial Notes or Exchange Notes.
The aggregate principal amount of Notes outstanding at any time may not exceed
$225.0 million.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.3. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York where (i) Notes may be presented for
registration of transfer or for exchange ("Registrar") and (ii) Notes may be
presented for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange (the "Register"). The Company may
appoint one or more co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company shall enter into an
appropriate agency agreement with any Registrar, Paying Agent or co-registrar
not a party to this Indenture, which shall
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incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC")to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
Section 2.4. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent, including the
Trustee (who shall be deemed to have agreed by its execution of this Indenture),
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee (unless the Paying Agent is the Trustee, in which case it
shall hold in trust for the Holders) all money held by the Paying Agent for the
payment of principal, premium, if any, or interest, on the Notes, and shall
notify the Trustee of any default by the Company or any Subsidiary Guarantor in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the
Company or a Subsidiary, the Trustee shall serve as sole Paying Agent for the
Notes.
Section 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least seven Business Days before each interest payment
date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of the Holders of Notes.
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Section 2.6. TRANSFER AND EXCHANGE. (a) TRANSFER AND
EXCHANGE OF DEFINITIVE NOTES. When Definitive Notes are
presented to the Registrar or a co-registrar with a request:
(x) to register the transfer of such Definitive Notes;
or
(y) to exchange such Definitive Notes for an equal
principal amount of Definitive Notes of other authorized
denominations,
the Registrar or co-registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
PROVIDED, HOWEVER, that the Definitive Notes surrendered for transfer or
exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form and substance reasonably satisfactory
to the Company and the Registrar or co-registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing; and
(ii) are Transfer Restricted Securities or such
Definitive Notes, accompanied by the following additional
information and documents, as applicable:
(A) if such Transfer Restricted Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such Transfer Restricted Securities are being
transferred to the Company or to a QIB in accordance with Rule
144A under the Securities Act, a certification to that effect
(in substantially the form set forth on the reverse of the
Security); or
(C) if such Transfer Restricted Securities are being
transferred (w) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act; or (x) to an Institutional Accredited Investor that is
acquiring the security for its own account, or for the account
of such an Institutional Accredited Investor, with respect to
which it exercises sole discretion, in each case in a minimum
principal amount of the Notes of $250,000 for investment
purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the
Securities Act; or (y) in reliance on another exemption from
the registration requirements of the Securities Act: (i) a
certification to that effect (in substantially the form set
forth on the reverse of
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the Security), (ii) if the Company or Registrar so requests,
an Opinion of Counsel reasonably acceptable to the Company and
to the Registrar to the effect that such transfer is in
compliance with the Securities Act and (iii) in the case of
clause (x), a signed letter substantially in the form of
Exhibit D hereto.
(b) RESTRICTIONS ON TRANSFER OF A DEFINITIVE NOTE FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE. A Definitive Note may not be exchanged for
a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by appropriate instruments of transfer, in form and
substance satisfactory to the Trustee and the Company, together with:
(i) if such Definitive Note is a Transfer Restricted
Security, certification, substantially in the form set forth on the
reverse of the Security, that such Definitive Note is being transferred
to a QIB in accordance with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a Transfer
Restricted Security, written instructions directing the Trustee to
make, or to direct the Note Custodian to make, an adjustment on its
books and records with respect to such Global Note to reflect an
increase in the aggregate principal amount of the Notes represented by
the Global Note,
then the Trustee shall cancel such Definitive Note and cause, or direct the Note
Custodian to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Note Custodian, the aggregate principal
amount of Notes represented by the Global Note to be increased accordingly. If
no Global Notes are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon written order of the Company in the form of an
Officer's Certificate, a new Global Note in the appropriate principal amount.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depository, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depository therefor.
(d) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL NOTE
FOR A DEFINITIVE NOTE.
(i) Any person having a beneficial interest in a Global
Note that is being transferred or exchanged pursuant to an effective
registration statement under the Securities
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Act or pursuant to clause (A),(B) or (C) below may upon request, and if
accompanied by the information specified below, exchange such
beneficial interest for a Definitive Note of the same aggregate
principal amount. Upon receipt by the Trustee of written instructions
or such other form of instructions as is customary for the Depository
from the Depository or its nominee on behalf of any Person having a
beneficial interest in a Global Note and upon receipt by the Trustee of
a written order or such other form of instructions as is customary for
the Depository or the Person designated by the Depository as having
such a beneficial interest in a Transfer Restricted Security only, the
following additional information and documents:
(A) if such beneficial interest is being transferred
to the Person designated by the Depository as being the owner
of a beneficial interest in a Global Note, a certification
from such Person to that effect (in substantially the form set
forth on the reverse of the Note); or
(B) if such beneficial interest is being transferred
(x) to a QIB in accordance with Rule 144A under the Securities
Act or (y) pursuant to an effective registration statement
under the Securities Act, a certification from such Person to
that effect (in substantially the form set forth on the
reverse of the Note); or
(C) if such beneficial interest is being transferred
(w) pursuant to an exemption from registration in accordance
with Rule 144 or Regulation S under the Securities Act; or (x)
to an Institutional Accredited Investor that is acquiring the
Note for its own account, or for the account of such an
Institutional Accredited Investor, with respect to which it
exercises sole discretion, in each case in a minimum principal
amount of the Notes of $250,000 for investment purposes and
not with a view to, or for offer or sale in connection with,
any distribution in violation of the Notes; or (y) in reliance
on another exemption from the registration requirements of the
Securities Act: (i) a certification to that effect from the
transferee or transferor (in substantially the form set forth
on the reverse of the Note), (ii) if the Company or Registrar
so requests, an Opinion of Counsel from the transferee or
transferor reasonably acceptable to the Company and to the
Registrar to the effect that such transfer is in compliance
with the Securities Act, and (iii) in the case of clause (x),
a signed letter substantially in the form of Exhibit D hereto,
then the Trustee or the Note Custodian, at the direction of
the Trustee, will cause, in accordance with the standing
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instructions and procedures existing between the Depository and the
Note Custodian, the aggregate principal amount of the Global Note to be
reduced on its books and records and, following such reduction, the
Company will execute and the Trustee will authenticate and make
available for delivery to the transferee a Definitive Note.
(ii) Definitive Notes issued in exchange for a
beneficial interest in a Global Note pursuant to this Section 2.6(d)
shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall make such Definitive Notes available for delivery to the persons
in whose names such Notes are so registered in accordance with the
instructions of the Depository.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.6), a Global Note may
not be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) AUTHENTICATION OF DEFINITIVE NOTES IN ABSENCE OF
DEPOSITORY. If at any time:
(i) the Depository for the Notes notifies the Company
that the Depository is unwilling or unable to continue as Depository
for the Global Notes and a successor Depository for the Global Notes is
not appointed by the Company within 90 days after delivery of such
notice; or
(ii) the Company, in its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of
Definitive Notes under this Indenture,
then the Company will execute, and the Trustee, upon receipt of an Officer's
Certificate requesting the authentication and delivery of Definitive Notes to
the Persons designated by the Company, will authenticate and make available for
delivery Definitive Notes, in an aggregate principal amount equal to the
principal amount of Global Notes, in exchange for such Global Notes.
(g) LEGEND.
(i) Except as permitted by the following paragraph
(ii), each Note certificate evidencing the Global Notes and the
Definitive Notes (and all Notes issued in exchange therefor or
substitution thereof) shall bear a legend (the
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"RESTRICTED SECURITIES LEGEND") in substantially the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR
WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE
TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY, ANY SUBSIDIARY GUARANTOR OR ANY AFFILIATE
OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT, IN A TRANSACTION COMPLYING
WITH THE REQUIREMENTS OF RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS
GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULES 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL
AMOUNT OF THE SECURITIES OF $250,000 FOR INVESTMENT PURPOSES
AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR
(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE
CASE OF ANY OF THE FOREGOING CLAUSES (A)-(F), A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
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COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE."
(ii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the Securities Act or an
effective registration statement under the Securities Act:
(A) in the case of any Transfer Restricted Security
that is a Definitive Note, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security
for a Definitive Note that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Transfer Restricted Security; and
(B) any such Transfer Restricted Security represented
by a Global Note shall not be subject to the provisions set
forth in clause (i) of this Section 2.6(g) (such sales or
transfers being subject only to the provisions of Section
2.6(c) hereof); PROVIDED, HOWEVER, that with respect to any
request for an exchange of a Transfer Restricted Security that
is represented by a Global Note for a Definitive Note that
does not bear a legend, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in writing to the
Registrar that such request is being made pursuant to Rule 144
(such certification to be substantially in the form set forth
on the reverse of the Note).
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTE. At such
time as all beneficial interests in a Global Note have either been exchanged for
Definitive Notes, redeemed, repurchased or canceled, such Global Note shall be
returned to the Depository for cancellation or retained and canceled by the
Trustee. At any time prior to such cancellation, if any beneficial interest in
a Global Note is exchanged for Definitive Notes, redeemed, repurchased or
canceled, the principal amount of Notes represented by such Global Note shall be
reduced and an adjustment shall be made on the books and records of the Trustee
(if it is then the Note Custodian for such Global Note) or the Note Custodian
with respect to such Global Note, by the Trustee or the Note Custodian, to
reflect such reduction.
(i) OBLIGATIONS WITH RESPECT TO TRANSFERS AND
EXCHANGES OF NOTES.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Definitive
Notes and Global Notes at the Registrar's or co-registrar's request.
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(ii) No service charge shall be made for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax, assessments, or
similar governmental charge payable in connection therewith.
(iii) The Registrar or co-registrar shall not be required
to register the transfer of or exchange of (a) any Definitive Note
selected for redemption in whole or in part pursuant to Article 3,
except the unredeemed portion of any Definitive Note being redeemed in
part, or (b) any Note for a period beginning 15 Business Days before
the mailing of a notice of an offer to repurchase or redeem Notes or 15
Business Days before an interest payment date.
(iv) Prior to the due presentation for registration of
transfer of any Note, each of the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar may deem and treat the person
in whose name a Note is registered as the absolute owner of such Note
for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying
Agent, the Registrar and any co-registrar shall be affected by notice
to the contrary.
(v) All Notes issued upon any transfer or exchange
pursuant to the terms of this Indenture shall evidence the same debt
and shall be entitled to the same benefits under this Indenture as the
Notes surrendered upon such transfer or exchange.
(j) NO OBLIGATION OF THE TRUSTEE. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Note, a
member of, or a participant in the Depository or other Person with respect to
the accuracy of the records of the Depository or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Notes or with respect to the delivery to any participant, member, beneficial
owner or other Person (other than the Depository) of any notice (including any
notice of redemption) or the payment of any amount, under or with respect to
such Notes. All notices and communications to be given to the Holders and all
payments to be made to Holders under the Notes shall be given or made only to or
upon the order of the registered Holders (which shall be the Depository or its
nominee in the case of a Global Note). The rights of beneficial owners in any
Global Note in global form shall be exercised only through the Depository
subject to the applicable rules and procedures of the Depository. The Trustee
may conclusively rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its members, participants and any
beneficial owners.
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(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Note (including, without limitation, any
transfers between or among Depository participants, members or beneficial owners
in any Global Note) other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by, the terms of this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Registrar, or if
the Holder of a Note claims that the Note has been lost, destroyed or wrongfully
taken, the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee,
upon the receipt of a written authentication order of the Company signed by two
Officers of the Company, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company and the Trustee may charge for its expenses in replacing a
Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. A Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on
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that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
Section 2.9. TEMPORARY NOTES.
Until Definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of Definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without unreasonable
delay, the Company shall prepare and the Trustee shall authenticate Definitive
Notes and make them available for delivery in exchange for temporary Notes.
Section 2.10. CUSIP NUMBER.
The Company in issuing the Notes may use a "CUSIP" number, and
if so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness or accuracy of the CUSIP
number printed in the notice or on the Notes and that reliance may be placed
only on the other identification numbers printed on the Notes.
Section 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all cancelled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
Section 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.1 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record
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date, the Company (or, upon the written request of the Company, the Trustee in
the name and at the expense of the Company) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.7 hereof, then it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the paragraph of the Notes and/or
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
Section 3.2. SELECTION OF NOTES TO BE REDEEMED.
If less than all of the Notes are to be redeemed at any time,
selection of Notes for redemption shall be made by the Trustee in compliance
with the requirements of the principal national securities exchange, if any, on
which the Notes are listed, or, if the Notes are not so listed, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Notes of $1,000 or less shall be redeemed in part. In the event
of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the redemption date by the Trustee from the outstanding Notes not
previously called for redemption.
The Trustee shall promptly notify the Company in writing of
the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected shall be in amounts of $1,000 or whole multiples of
$1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of $1,000, shall be redeemed. A new Note in principal amount equal to the
unredeemed portion thereof shall be issued in the name of the Holder thereof
upon cancellation of the original Note. On and after the redemption date, unless
the Company defaults in payment of the redemption price, interest ceases to
accrue on Notes or portions of them called for redemption. Except as provided in
this Section 3.2, provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption.
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The provisions of the two preceding paragraphs of this Section
3.2 shall not apply with respect to any redemption affecting only a Global Note,
whether such Global Note is to be redeemed in whole or in part. In case of any
such redemption in part, the unredeemed portion of the principal amount of the
Global Note shall be in an authorized denomination.
Section 3.3. NOTICE OF REDEMPTION.
Subject to the provisions of Section 3.9 hereof, at least 30
days but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder of Notes to be redeemed at such Holder's registered address, provided,
however, that the Company shall provide notice to the Trustee in accordance with
Section 3.1 hereof at least five days prior to the mailing of the notice
pursuant to this Section 3.3.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue on
and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being redeemed,
and, if the redemption is to occur pursuant to Section 3.7, a description of the
transaction or transactions that constitute the Change of Control; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
If any of the Notes to be redeemed is in the form of a Global
Note, then such notice shall be modified in form but not substance to the extent
appropriate to accord with the procedures of the Depository applicable to
redemptions.
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At the Company's request and expense, the Trustee shall give
the notice of redemption in the Company's name; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, a notice signed by two officers requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in the preceding paragraph.
Section 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section
3.3 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
Section 3.5. DEPOSIT OF REDEMPTION PRICE.
On or prior to the redemption date, the Company shall deposit
with the Trustee or with the Paying Agent money sufficient to pay the redemption
price of and accrued interest on all Notes to be redeemed on that date. The
Trustee or the Paying Agent shall promptly return to the Company any money
deposited with the Trustee or the Paying Agent by the Company in excess of the
amounts necessary to pay the redemption price of and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.1 hereof.
Section 3.6. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon the receipt of a written authentication order of the
Company signed by two Officers of the Company, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
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Section 3.7. OPTIONAL REDEMPTION.
(a) Except as set forth in clauses (b) and (c) of this Section
3.7, the Company shall not have the option to redeem the Notes pursuant to this
Section 3.7 prior to June 15, 2002. From and after June 15, 2002, the Company
shall have the option to redeem the Notes, in whole or in part, upon not less
than 30 nor more than 60 days notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of each of the years indicated below:
Percentage of
Year Principal Amount
-----------------
2002...................................................... 104.938%
2003...................................................... 103.292%
2004 ..................................................... 101.646%
2005 and thereafter....................................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.7, at any time prior to June 15, 2000, the Company may, at its option,
on any one or more occasions, redeem up to 40% of the original aggregate
principal amount of Notes at a redemption price of 109.875% of the principal
amount thereof, plus accrued and unpaid interest, if any, thereon to the
redemption date with all or a portion of the net proceeds of public sales of
common stock of the Company, without par value (the "Common Stock"); provided
that at least 60% of the original aggregate principal amount of Notes remains
outstanding immediately after the occurrence of such redemption; and provided,
further, that such redemption shall occur within 60 days of the date after the
closing of the related sale of such Common Stock.
(c) Notwithstanding the provisions of clause (a) of this
Section 3.7, upon the occurrence of a Change of Control at any time on or prior
to June 15, 2002, the Company may, at its option, redeem in whole but not in
part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, to, the date of redemption (the "Change of Control Redemption Payment")
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date) provided that such
redemption shall be made no more than 90 days after the occurrence of a Change
of Control. Provided the Company complies with Section 3.3 and the other
provisions hereof applicable to such redemption, a redemption pursuant to this
Section 3.7(c) can
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occur simultaneously with the occurrence of a Change of Control. Notwithstanding
any provision of Section 3.7(d), the Company shall notify the Trustee and, by
mail, the Holders of the Notes of its decision to redeem the Notes pursuant to
this Section 3.7(c) no later than 30 days after the occurrence of a Change of
Control.
(d) Any redemption pursuant to this Section 3.7 shall be made
pursuant to the provisions of Sections 3.1 through 3.6 hereof and, as to Section
3.7(c) only, pursuant to the provisions of Section 4.13.
Section 3.8. MANDATORY REDEMPTION.
Except as set forth under Sections 4.10 and 4.13 hereof, the
Company shall not be required to make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.9. OFFER TO PURCHASE BY APPLICATION OF
EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the
Company shall be required to commence an offer to all Holders of Notes and, to
the extent required by the terms thereof, to all holders or lenders of other
Pari Passu Indebtedness, to purchase Notes and any such Pari Passu Indebtedness
(an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.10 hereof, giving effect to any
related offer for Pari Passu Indebtedness pursuant to Section 4.10, (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes tendered
in response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the
Company shall send, by first class mail, a notice to the Trustee and each of the
Holders. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale
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Offer shall be made to all Holders. The notice, which shall govern the terms of
the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.10 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such payment,
any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer may only elect to have all of such Note purchased
and may not elect to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer shall be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of
the Note completed, or transfer by book-entry transfer, to the Company,
a Depository, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date;
(g) that Holders shall be entitled to withdraw their election
if the Company, the Depository or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall
select the Notes to be purchased on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that only
Notes in denominations of $1,000, or integral multiples thereof, shall
be purchased) in the manner provided in Section 4.10; and
(i) that Holders whose Notes were purchased only in part shall
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered (or transferred by book-entry
transfer).
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If any of the Notes subject to an Asset Sale Offer is in the
form of a Global Note, then such notice may be modified in form but not
substance to the extent appropriate to accord with the procedures of the
Depository applicable to repurchases.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes
tendered, and shall deliver to the Trustee an Officers' Certificate stating that
such Notes or portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.9. The Company, the Depository or
the Paying Agent, as the case may be, shall promptly (but in any case not later
than five days after the Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Notes tendered by such Holder and
accepted by the Company for purchase, and the Company shall promptly issue a new
Note, and the Trustee, upon receipt of a written authentication order of the
Company signed by two Officers of the Company shall authenticate and mail or
deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Asset Sale Offer on the Purchase
Date.
Other than as specifically provided in this Section 3.9, any
purchase pursuant to this Section 3.9 shall be made pursuant to the provisions
of Sections 3.1 through 3.6 hereof.
ARTICLE 4
COVENANTS
Section 4.1. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated for
and sufficient to pay all such amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal at the
rate equal to 1% per annum in excess of the then applicable interest rate on the
Notes to the extent lawful; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace period) at the same rate to the
extent lawful.
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Section 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where principal,
premium, if any, and interest on the Notes will be paid and where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the following office of an
Affiliate of the Trustee as one such office or agency of the Company in
accordance with Section 2.3: LaSalle National Bank, 135 South LaSalle Street,
Chicago, Illinois, 60603.
Section 4.3. COMMISSION REPORTS.
Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, to the extent permitted by the Exchange Act, the Company shall file with
the Commission and provide, within 15 days after such filing, the Trustee and
Holders and prospective Holders (upon request) with the annual reports and the
information, documents and other reports that are specified in Sections 13 and
15(d) of the Exchange Act (but without exhibits in the case of the Holders and
prospective Holders). In the event that the Company is not permitted to file
such reports, documents and information with the Commission, the Company will
provide substantially similar information to the Trustees, the Holders and
prospective Holders (upon request) as if the Company were subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act within 15 days
of the date the Company would have been obligated to file such reports with the
Commission, were the Company permitted to file such reports with the Commission.
The Company also will comply with the other provisions of Section 314(a) of the
TIA.
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Section 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days
after the end of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, premium,
if any, or interest on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto. As of the date hereof, the Company's fiscal year ends
on December 31 of each calendar year. In the event the Company changes its
fiscal year, it shall promptly notify the Trustee of such change.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
fiscal year-end financial statements delivered pursuant to Section 4.3 above
shall be accompanied by a written statement of the Company's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial statements,
nothing has come to their attention that would lead them to believe that the
Company has violated any provisions of Article 4 or Article 5 hereof or, if any
such violation has occurred, specifying the nature and period of existence
thereof, it being understood that such accountants shall not be liable directly
or indirectly to any Person for any failure to obtain knowledge of any such
violation.
(c) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, a certificate of two officers
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.5. TAXES.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency all material taxes,
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assessments, and governmental levies except such as are contested in good faith
and by appropriate proceedings or where the failure to effect such payment is
not adverse in any material respect to the Holders of the Notes.
Section 4.6. STAY, EXTENSION AND USURY LAWS.
Each of the Company and the Subsidiary Guarantors covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and each of the Company and the Subsidiary Guarantors (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
Section 4.7. RESTRICTED PAYMENTS.
The Company shall not and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly: (i) declare or pay any
dividend or make any other payment or distribution on account of the Company's
Equity Interests (including, without limitation, any payment to holders of the
Company's Equity Interests in connection with any merger or consolidation
involving the Company) or to the direct or indirect holders of the Company's
Equity Interests in their capacity as such (other than dividends or
distributions payable in Equity Interests (other than Disqualified Stock) of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any Subsidiary of the Company that is not a
Wholly Owned Restricted Subsidiary of the Company (other than any such purchase,
redemption or other acquisition or retirement made in connection with the
Transaction); (iii) make any principal payment on, or purchase, redeem, defease
or otherwise acquire or retire for value any Indebtedness that is subordinated
to the Notes, except at final maturity or as a mandatory or sinking fund
repayment; or (iv) make any Restricted Investment (all such payments and other
actions set forth in clauses (i) through (iv) above being collectively referred
to as "Restricted Payments"), unless, at the time of and after giving effect to
such Restricted Payment:
(a) no Default or Event of Default shall have occurred
and be continuing or would occur as a consequence thereof;
and
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the
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applicable four-quarter period, have been permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage
Ratio test set forth in the first paragraph of Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of
all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the date of this Indenture (excluding Restricted
Payments permitted by clauses (1), (3), (4) and (7) of the next
succeeding paragraph), is less than the sum of (i) 50% of the
Consolidated Net Income of the Company for the period (taken as one
accounting period) from the beginning of the first fiscal quarter
commencing after the date of this Indenture to the end of the Company's
most recently ended fiscal quarter for which internal financial
statements are available at the time of such Restricted Payment (or, if
such Consolidated Net Income for such period is a deficit, less 100% of
such deficit), plus (ii) 100% of the aggregate net cash proceeds
received by the Company from the issue and sale since the date of this
Indenture of Equity Interests in the Company or of debt securities of
the Company that have been converted into or exchanged for such Equity
Interests (other than Equity Interests (or convertible debt securities)
sold to a Subsidiary of the Company and other than Disqualified Stock
or debt securities that have been converted into Disqualified Stock),
plus (iii) to the extent that any Restricted Investment that was made
after the date of this Indenture is sold for cash or otherwise
liquidated or repaid for cash or the receipt of properties used in the
Oil and Gas Business, the lesser of (A) the net proceeds of such sale,
liquidation or repayment or the fair market value of property received
in exchange therefor and (B) the amount of such Restricted Investment;
provided, however, that the foregoing provisions of this paragraph (c)
will not prohibit Restricted Payments in an aggregate amount not to
exceed $15 million.
The foregoing provisions shall not prohibit: (1) the purchase,
redemption, retirement or other acquisition for value of any Equity Interests of
the Company contemplated by the Transaction; (2) the payment of any dividend
within 60 days after the date of declaration thereof, if at said date of
declaration such payment would have complied with the provisions of this
Indenture; (3) the redemption, repurchase, retirement or other acquisition of
any Equity Interests of the Company in exchange for, or out of the proceeds of,
the substantially concurrent sale (other than to a Subsidiary of the Company) of
other Equity Interests of the Company (other than any Disqualified Stock);
provided that the amount of any such net cash proceeds that are utilized for any
such redemption, repurchase, retirement or other acquisition shall be excluded
from clause (c)(ii) of the preceding paragraph; (4) the defeasance, redemption
or repurchase of Subordinated Indebtedness with the net cash proceeds from an
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incurrence of subordinated Permitted Refinancing Debt or the substantially
concurrent sale (other than to a Subsidiary of the Company) of Equity Interests
of the Company (other than Disqualified Stock); provided that the amount of any
such net cash proceeds that are utilized for any such redemption, repurchase,
retirement or other acquisition shall be excluded from clause (c)(ii) of the
preceding paragraph; (5) the repurchase, redemption or other acquisition or
retirement for value of any Equity Interests of the Company or any Subsidiary of
the Company held by any of the Company's (or any of its Subsidiaries') employees
pursuant to any management equity subscription agreement or stock option
agreement in effect as of the date of this Indenture; provided that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests shall not exceed $2.0 million in any twelve-month period; and
provided further that no Default or Event of Default shall have occurred and be
continuing immediately after such transaction; (6) the purchase, redemption or
other acquisition or retirement for value of any Equity Interests of the Company
(initially represented by stock options to acquire 204,500 shares of the
Company's Common Stock, which number will be adjusted in connection with the
Transaction) granted prior to the Acquisition and held by Messrs. Belden,
Mardick, Clements and Huff, which individuals elected not to dispose of such
Equity Interests in connection with the Acquisition; and (7) repurchases of
Equity Interests deemed to occur upon exercise of stock options if such Equity
Interests represent a portion of the exercise price of such options.
The amount of all Restricted Payments (other than cash) shall
be the fair market value (as determined in good faith by a resolution of the
Board of Directors of the Company set forth in a certificate of two officers
delivered to the Trustee, which determination shall be conclusive evidence of
compliance with this provision) on the date of the Restricted Payment of the
asset(s) proposed to be transferred by the Company or the applicable Restricted
Subsidiary, as the case may be, pursuant to the Restricted Payment. Not later
than five days after the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.7 were computed.
In computing Consolidated Net Income for purposes of this
Section 4.7, (i) the Company shall use audited financial statements for the
portion of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (ii) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which,
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at the time of the making of such Restricted Payment, would on the good faith
determination of the Company be permitted under the requirements of this
Indenture, such Restricted Payment shall be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements affecting Consolidated Net
Income of the Company for any period.
The Board of Directors may designate any Restricted Subsidiary
to be an Unrestricted Subsidiary if such designation would not cause a Default.
For purposes of making such determination, all outstanding Investments by the
Company and its Restricted Subsidiaries (except to the extent repaid in cash) in
the Subsidiary so designated shall be deemed to be Restricted Payments at the
time of such designation and shall reduce the amount available for Restricted
Payments under clause (c) of the first paragraph of this covenant. All such
outstanding Investments shall be deemed to constitute Investments in an amount
equal to the greater of the fair market value or the book value of such
Investments at the time of such designation. Such designation shall only be
permitted if such Restricted Payment would be permitted at such time and if such
Restricted Subsidiary otherwise meets the definition of an Unrestricted
Subsidiary.
Section 4.8. DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING RESTRICTED SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(x) pay dividends or make any other
distributions to the Company or any of its Restricted Subsidiaries (1) on its
Capital Stock or (2) with respect to any other interest or participation in, or
measured by, its profits, or (y) pay any indebtedness owed by it to the Company
or any of its Restricted Subsidiaries, (ii) make loans or advances to the
Company or any of its Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of (a)
the New Credit Agreement as in effect as of the date of this Indenture, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof or any other Credit Facility,
provided that such amendments, modifications, restatements, renewals, increases,
supplements, refundings, replacements, refinancings or any other Credit
Facilities are no more restrictive taken as a whole with respect to such
dividend and other payment restrictions than those contained in the New Credit
Agreement as in effect on the date of this Indenture, (b) this Indenture and the
Notes, (c) applicable law, (d) any instrument governing Indebtedness or Capital
Stock of a Person acquired by the Company or any of its Restricted Subsidiaries
as in effect at the time of such acquisition
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(except, in the case of Indebtedness, to the extent such Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person and its Subsidiaries, or the
property or assets of the Person and its Subsidiaries, so acquired, provided
that, in the case of Indebtedness, such Indebtedness was permitted by the terms
of this Indenture to be incurred, (e) by reason of customary non-assignment
provisions in leases and customary provisions in other agreements that restrict
assignment of such agreements or rights thereunder, entered into in the ordinary
course of business, (f) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, (g) Permitted Refinancing Debt,
provided that the restrictions contained in the agreements governing such
Permitted Refinancing Debt are no more restrictive than those contained in the
agreements governing the Indebtedness being refinanced, (h) any other security
agreement, instrument or document relating to Senior Debt in effect after the
date of this Indenture, provided that such encumbrances or restrictions are
customary in connection with such documents and that the terms and conditions of
such encumbrances or restrictions are no more restrictive than those
encumbrances or restrictions imposed in connection with the New Credit
Agreement, (i) Permitted Liens or (j) customary provisions in joint venture
agreements and other similar agreements relating to the distribution of revenue
from such joint venture or other business venture.
Section 4.9. INCURRENCE OF INDEBTEDNESS AND ISSUANCE
OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, directly or indirectly, create incur, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or
otherwise, with respect to (collectively, "incur") any Indebtedness and the
Company shall not issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred stock to any person
other than the Company or a Wholly-Owned Restricted Subsidiary of the Company;
provided, however, that the Company and the Subsidiary Guarantors may incur
Indebtedness or issue shares of Disqualified Stock if:
(i) the Fixed Charge Coverage Ratio for the Company's
most recently ended four full fiscal quarters for which internal
financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified
Stock is issued would have been at least 2.5 to 1, determined on a pro
forma basis as set forth in the definition of Fixed Charge Coverage
Ratio; and
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(ii) no Default or Event of Default shall have occurred
and be continuing at the time such additional Indebtedness is incurred
or such Disqualified Stock is issued or would occur as a consequence of
the incurrence of the additional Indebtedness or the issuance of the
Disqualified Stock.
Notwithstanding the foregoing, this Indenture shall not
prohibit any of the following (collectively, "Permitted Indebtedness"): (a) the
Indebtedness evidenced by the Notes; (b) the incurrence by the Company or any of
its Restricted Subsidiaries of Indebtedness pursuant to Credit Facilities, so
long as the aggregate principal amount of all Indebtedness outstanding under all
Credit Facilities does not, at any one time, exceed the greater of (1) $300.0
million and (2) the Borrowing Base, provided that the Company may incur more
than $300 million of Indebtedness pursuant to Credit Facilities only if the
Fixed Charge Coverage Ratio for the Company's most recently ended four full
fiscal quarters for which internal financial statements are available would have
been at least 2.0 to 1, determined on a pro forma basis as set forth in the
definition of Fixed Charge Coverage Ratio; (c) the guarantee by any Subsidiary
Guarantor of any Indebtedness that is permitted by this Indenture to be incurred
by the Company; (d) all Indebtedness of the Company and its Restricted
Subsidiaries in existence as of the date of this Indenture; (e) intercompany
Indebtedness between or among the Company and any of its Wholly Owned Restricted
Subsidiaries; provided, however, that if the Company is the obligor on such
Indebtedness, (i) such Indebtedness is expressly subordinate to the payment in
full of all Obligations with respect to the Notes and (ii)(A) any subsequent
issuance or transfer of Equity Interests that results in any such Indebtedness
being held by a Person other than the Company or a Wholly Owned Restricted
Subsidiary and (B) any sale or other transfer of any such Indebtedness to a
Person that is not either the Company or a Wholly Owned Restricted Subsidiary
shall be deemed, in each case, to constitute an incurrence of such Indebtedness
by the Company or such Restricted Subsidiary, as the case may be; (f)
Indebtedness in connection with one or more standby letters of credit,
guarantees, performance bonds or other reimbursement obligations, in each case,
issued in the ordinary course of business and not in connection with the
borrowing of money or the obtaining of advances or credit (other than advances
or credit on open account, includible in current liabilities, for goods and
services in the ordinary course of business and on terms and conditions which
are customary in the Oil and Gas Business, and other than the extension of
credit represented by such letter of credit guarantee or performance bond
itself), not to exceed in the aggregate at any given time 5.0% of Total Assets;
(g) Indebtedness under Interest Rate Hedging Agreements entered into for the
purpose of limiting interest rate risks, provided that the obligations under
such agreements are related to payment obligations on Indebtedness otherwise
permitted by the terms of this covenant and that the
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aggregate notional principal amount of such agreements does not exceed 105% of
the principal amount of the Indebtedness to which such agreements relate; (h)
Indebtedness under Oil and Gas Hedging Contracts, provided that such contracts
were entered into in the ordinary course of business for the purpose of limiting
risks that arise in the ordinary course of business of the Company and its
Restricted Subsidiaries; (i) the incurrence by the Company of Indebtedness not
otherwise permitted to be incurred pursuant to this paragraph, provided that the
aggregate principal amount of all Indebtedness incurred pursuant to this clause
(i), together with all Permitted Refinancing Debt incurred pursuant to clause
(j) of this paragraph in respect of Indebtedness previously incurred pursuant to
this clause (i), does not exceed $15.0 million at any one time outstanding; (j)
Permitted Refinancing Debt incurred in exchange for, or the net proceeds of
which are used to refinance, extend, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred (including
Indebtedness previously incurred pursuant to this clause (j), but excluding
Indebtedness under clauses (b), (c), (e), (f), (g), (h), (k), (l) and (m)); (k)
accounts payable or other obligations of the Company or any Restricted
Subsidiary to trade creditors created or assumed by the Company or such
Restricted Subsidiary in the ordinary course of business in connection with the
obtaining of goods or services; (l) Indebtedness consisting of obligations in
respect of purchase price adjustments, guarantees or indemnities in connection
with the acquisition or disposition of assets; and (m) production imbalances
that do not, at any one time outstanding, exceed 2% of the Total Assets of the
Company.
The Company shall not permit any Unrestricted Subsidiary to
incur any Indebtedness other than Non-Recourse Debt; provided, however, if any
such Indebtedness ceases to be Non-Recourse Debt, such event shall be deemed to
constitute an incurrence of Indebtedness by the Company.
Section 4.10. ASSET SALES.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, engage in an Asset Sale unless (i) the Company (or
the Restricted Subsidiary, as the case may be) receives consideration at the
time of such Asset Sale at least equal to the fair market value (as determined
in good faith by a resolution of the Board of Directors of the Company set forth
in an Officer's Certificate delivered to the Trustee, which determination shall
be conclusive evidence of compliance with this provision) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 85%
of the consideration therefor received by the Company or such Restricted
Subsidiary in such Asset Sale, plus all other Asset Sales since the date of this
Indenture, on a cumulative basis, is in the form of cash, Cash Equivalents,
properties and capital assets to be used by the Company or any Restricted
subsidiary in the Oil and Gas Business or oil and gas properties owned or held
by another
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person which are to be used by the Company or its Restricted Subsidiaries, or
any combination thereof (collectively the "cash consideration"); provided that
the amount of (x) any liabilities (as shown on the Company's or such Restricted
Subsidiary's most recent balance sheet), of the Company or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Notes or any guarantee thereof) that are assumed by
the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Restricted Subsidiary from further liability
and (y) any non-cash consideration received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary into cash within 180 days of closing such Asset Sale,
shall be deemed to be cash for purposes of this provision (to the extent of the
cash received); provided, however, that the Company and its Restricted
Subsidiaries may make Asset Sales with a fair market value not exceeding $5
million in the aggregate in each year of twelve calendar months (beginning the
first full month following the date of this Indenture) free from any of the
restrictions, requirements or other provisions set forth in this Section 4.10.
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company may apply such Net Proceeds, at its option, in any order
or combination: (a) to reduce Senior Debt, (b) to make Permitted Investments, in
any order or combination, (c) to make investments in interests in another Oil
and Gas Business or (d) to make capital expenditures in respect of the Company's
or its Restricted Subsidiaries' Oil and Gas Business or to purchase long-term
assets that are used or useful in such Oil and Gas Business. Pending the final
application of any such Net Proceeds, the Company may temporarily reduce Senior
Debt that is revolving debt or otherwise invest such Net Proceeds in any manner
that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales that
are not applied as provided in the first sentence of this paragraph shall (after
the expiration of the periods specified in this paragraph) be deemed to
constitute "Excess Proceeds."
When the aggregate amount of Excess Proceeds exceeds $15.0
million, the Company shall make an Asset Sale Offer to purchase the maximum
principal amount of Notes and any other Pari Passu Indebtedness to which the
Asset Sale Offer applies that may be purchased out of the Excess Proceeds, at an
offer price in cash in an amount equal to, in the case of the Notes, 100% of the
principal amount thereof plus accrued and unpaid interest thereon to the date of
purchase or, in the case of any other Pari Passu Indebtedness, 100% of the
principal amount thereof (or with respect to discount Pari Passu Indebtedness,
the accrued value thereof) on the date of purchase, in each case, in accordance
with the procedures set forth in Section 3.9 hereof or the agreements governing
Pari Passu Indebtedness, as applicable. To the extent that the aggregate
principal amount (or accreted value, as the case may be) of the Notes and Pari
Passu
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Indebtedness tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds for general
corporate purposes. If the sum of (i) the aggregate principal amount of Notes
surrendered by Holders thereof, and (ii) the aggregate principal amount or
accreted value, as the case may be, of other Pari Passu Indebtedness surrendered
by holders or lenders thereof, exceeds the amount of Excess Proceeds, the
Trustee and the trustee or other lender representatives for the Pari Passu
Indebtedness shall select the Notes and other Pari Passu Indebtedness to be
purchased on a pro rata basis, based on the aggregate principal amount (or
accreted value, as applicable) thereof surrendered in such Asset Sale Offer.
Upon completion of such Asset Sale Offer, the Excess Proceeds shall be reset at
zero.
Section 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any of
its Affiliates (each of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are no less favorable to the Company
or the relevant Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to an
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $5 million, an Officers' Certificate to the
Trustee certifying that such Affiliate Transaction complies with clause (i)
above, (b) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of $7.5
million, a resolution of the Board of Directors set forth in an Officer's
Certificate certifying that such Affiliate Transaction or series of related
Affiliate Transactions complies with clause (i) above and that such Affiliate
Transaction or series of related Affiliate Transactions has been approved in
good faith by a majority of the members of the Board of Directors of the Company
who are disinterested with respect to such Affiliate Transaction or series of
related Affiliate Transactions (which resolution shall be conclusive evidence of
compliance with this provision) and (c) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10 million, a resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
or series of related Affiliate Transactions complies with clause (i) above and
that such Affiliate Transaction or series of related Affiliate Transactions has
been approved in good faith by a resolution adopted by a majority of the members
of the Board of Directors of the Company who are disinterested with respect to
such Affiliate Transaction
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or series of related Affiliate Transactions and an opinion as to the fairness to
the Company or such Subsidiary of such Affiliate Transaction or series of
related Affiliate Transactions from a financial point of view issued by an
accounting, appraisal, engineering or investment banking firm of national
standing (which resolution and fairness opinion shall be conclusive evidence of
compliance with this provision), provided, however, that the foregoing shall not
apply to (1) reasonable fees and compensation paid to (including issuances and
grant of securities and stock options), employment agreements and stock option
and ownership plans for the benefit of officers, directors, employees or
consultants of the Company or any Restricted Subsidiary of the Company as
determined in good faith by the Company's Board of Directors or senior
management, (2) payments made in connection with the Transaction, including fees
to TPG II, (3) the repurchase of shares of the Company's Common Stock obtainable
by Messrs. Belden, Mardick, Clements and Huff, pursuant to the exercise of stock
options to acquire 204,500 shares of the Company's Common Stock granted to such
individuals prior to the Acquisition, and which options such individuals elected
not to exercise or surrender in connection with the Acquisition, (4)
transactions between or among the Company and/or its Restricted Subsidiaries,
(5) Restricted Payments and Permitted Investments that are permitted by Section
4.7 and the definition of Permitted Investments, (6) indemnification payments
made to officers, directors and employees of the Company or its Subsidiaries
pursuant to charter, by-law, statutory or contractual provisions and (7) any
contracts, agreements or understandings (i) existing as of the date of this
Indenture or (ii) entered into pursuant to the terms of the Merger Agreement
described in this Offering Memorandum including, without limitation, the
Transaction Advisory Agreement or any amendment thereto or any transaction
contemplated thereby (including pursuant to any amendment thereto or any
replacement agreement thereto so long as any such amendment or replacement
agreement has terms that are not any more disadvantageous to the Holders of the
Notes in any material respect than the original agreement as in affect as in
effect on the date of this Indenture).
Section 4.12. LIENS.
The Company shall not, and shall not permit any of its
Restricted Subsidiaries to, create, incur, assume or otherwise cause or suffer
to exist or become effective any Lien securing Indebtedness of any kind (other
than Permitted Liens) upon any of its property or assets, now owned or hereafter
acquired, unless all payments under the Notes are secured by such Lien prior to,
or on an equal and ratable basis with, the Indebtedness so secured for so long
as such Indebtedness is secured by such Lien.
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Section 4.13. OFFER TO REPURCHASE UPON CHANGE OF
CONTROL.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Notes pursuant to Section 3.7(c), each Holder of the Notes
shall, unless the Company shall have elected to redeem the Notes prior to June
15, 2002 pursuant to Section 3.7(c), have the right to require the Company to
repurchase all or any part (equal to $1,000 or an integral multiple thereof) of
such Holder's Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash equal to 101% of the aggregate
principal amount of the Notes plus accrued and unpaid interest if any, thereon
to the date of purchase (the "Change of Control Payment"). Within 30 days
following any Change of Control, the Company shall mail a notice to each Holder
stating: (1) a description of the transaction or transactions that constitute
the Change of Control; (2) that the Change of Control Offer is being made
pursuant to this Section 4.13 and that all Notes tendered shall be accepted for
payment; (3) the purchase price and the purchase date described below (the
"Change of Control Payment Date"); (4) that any Note not tendered shall continue
to accrue interest, if any; (5) that, unless the Company defaults in the payment
of the Change of Control Payment, all Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest, if any, after the Change
of Control Payment Date; (6) that Holders electing to have any Notes purchased
pursuant to a Change of Control Offer shall be required to surrender the Notes,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Notes completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day preceding the Change of
Control Payment Date; (7) that Holders shall be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of Notes delivered for purchase, and a statement
that such Holder is withdrawing his election to have the Notes purchased; and
(8) that Holders whose Notes are being purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof. The Company and each Subsidiary
Guarantor shall comply with the requirements of Rule 14e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable to such party in connection with the
repurchase of the Notes as a result of a Change of Control.
(b) On a Business Day that is no earlier than 30 days nor
later than 60 days from the date that the Company mails or causes to be mailed
notice of the Change of Control to the Holders (the "Change of Control Payment
Date"), the Company
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shall, to the extent lawful, (i) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all the Notes or portions thereof so tendered and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of such Notes or
portions thereof being purchased by the Company. The Paying Agent shall promptly
mail to each Holder of the Notes so tendered the Change of Control Payment for
such Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered, if any; provided that each
such new Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date.
(c) Prior to complying with the provisions this Section 4.13,
but in any event within 30 days following a Change of Control, the Company shall
either repay all outstanding Senior Debt or obtain the requisite consents, if
any, under all agreements governing outstanding Senior Debt to permit the
repurchase of the Notes required by this Section 4.13.
The Change of Control provisions described above shall be
applicable whether or not any other provisions of this Indenture are applicable.
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.13 and purchases all Notes (or portions
thereof) validly tendered and not withdrawn under such Change of Control Offer.
The change of control that shall occur upon completion of the Transaction shall
not constitute a Change of Control under this Indenture and (i) the Company
shall have no right to exercise its redemption option pursuant to Section 3.7(c)
and (ii) the Holders of the Notes shall have no right to require the Company to
make a Change of Control Offer or a Change of Control Payment in respect
thereof.
Section 4.14. ADDITIONAL SUBSIDIARY GUARANTEES.
In the event that the Company shall acquire or create, or any
of its Subsidiaries shall acquire another Restricted Subsidiary after the date
of this Indenture, such newly acquired or created Restricted Subsidiary shall be
deemed to make the guarantee set forth in Section 11.1 and the Company shall
cause such Restricted Subsidiary to evidence such guarantee in the manner set
forth in Section 11.2.
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Section 4.15. CORPORATE EXISTENCE.
Subject to Article 5 hereof and the events contemplated by the
Transaction, the Company and the Subsidiaries shall do or cause to be done all
things necessary to preserve and keep in full force and effect (i) its corporate
existence, and the corporate, partnership or other existence of each of the
Subsidiaries, in accordance with the respective organizational documents (as the
same may be amended from time to time) of the Company or any such Subsidiary and
(ii) the rights (charter, partnership agreement and statutory), licenses and
franchises of the Company and the Subsidiaries; provided, however, that the
Company and the Subsidiaries shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any of
the Subsidiaries, if the Board of Directors of the relevant Person shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and the Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders of the Notes.
Section 4.16. NO SENIOR SUBORDINATED DEBT.
Notwithstanding the provisions of Section 4.9 hereof, (i) the
Company shall not incur, create, issue, assume, guarantee or otherwise become
liable for any Indebtedness that is subordinate or junior in right of payment to
any Senior Debt of the Company and senior in any respect in right of payment to
the Notes and (ii) the Subsidiary Guarantors shall not directly or indirectly
incur, create, issue, assume, guarantee or otherwise become liable for any
Indebtedness that is subordinate or junior in right of payment to Senior Debt of
the Company and senior in any respect in right of payment to the Subsidiary
Guarantees; provided, however, that the foregoing limitations shall not apply to
distinctions between categories of Indebtedness that exist by reason of any
Liens arising or created in respect of some but not all such Indebtedness.
Section 4.17. BUSINESS ACTIVITIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any material respect in any business other than the Oil
and Gas Business.
ARTICLE 5
SUCCESSORS
Section 5.1. MERGER, CONSOLIDATION, OR SALE OF
SUBSTANTIALLY ALL ASSETS.
Except for the Acquisition, the Company shall not consolidate
or merge with or into (whether or not the Company is the surviving corporation),
or sell, assign, transfer, lease,
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convey or otherwise dispose of all or substantially all of its properties or
assets, in one or more related transactions, to another Person, and the Company
may not permit any of its Restricted Subsidiaries to enter into any such
transaction or series of transactions if such transaction or series of
transactions would, in the aggregate, result in a sale, assignment, transfer,
lease, conveyance, or other disposition of all or substantially all of the
properties or assets of the Company to another Person, in either case unless (i)
the Company is the surviving corporation or the Person formed by or surviving
any such consolidation or merger (if other than the Company) or to which such
sale, assignment, transfer, lease, conveyance or other disposition shall have
been made (the "Surviving Entity") is a corporation organized or existing under
the laws of the United States, any state thereof or the District of Columbia;
(ii) the Surviving Entity (if the Company is not the continuing obligor under
this Indenture) assumes all the obligations of the Company under the Notes and
this Indenture pursuant to a supplemented indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately before and after giving effect to
such transaction or series of transactions no Default or Event of Default
exists; (iv) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Company or any of its Subsidiary which becomes the
obligation of the Company or any of its Subsidiary as a result of such
transaction or series of transactions as having been incurred at the time of
such transaction or series of transactions), the Consolidated Net Worth of the
Company and its Subsidiaries or the Surviving Entity (if the Company is not the
continuing obligor under this Indenture) is equal to or greater than the
Consolidated Net Worth of the Company and its Subsidiaries immediately prior to
such transaction or series of transactions and (v) the Company or Surviving
Entity (if the Company is not the continuing obligor under this Indenture) will,
at the time of such transaction or series of transactions and after giving pro
forma effect thereto as if such transaction or series of transactions had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least $1.00 of additional Indebtedness pursuant to the test set forth
in the first paragraph of Section 4.9 hereof. Notwithstanding the foregoing
clauses (iv) and (v), any Restricted Subsidiary may consolidate with, merge into
or transfer all or part of its properties and assets to the Company, and any
Wholly Owned Restricted Subsidiary may consolidate with, merge into or transfer
all or part of its properties and assets to another Wholly Owned Restricted
Subsidiary.
None of the provisions of this Section 5.1 shall be deemed to
prevent the merger of the Company with an Affiliate incorporated solely for the
purpose of reincorporating the Company in another jurisdiction. This Section 5.1
shall not apply to any consolidation, merger, sale, assignment, transfer, lease
or other disposition if the Company shall have elected to
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redeem the Notes pursuant to Section 3.7 and such redemption takes place prior
to or simultaneously with the Company's consolidation or merger with or into
another Person.
Section 5.2. SUCCESSOR CORPORATION SUBSTITUTED;
SUBSIDIARY GUARANTORS CONFIRMED.
(a) Upon any consolidation or merger, or any sale, assignment,
transfer, lease, conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, the Surviving
Entity shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the Surviving Entity and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.1 hereof.
(b) Upon any consolidation or merger, or any sale, assignment,
transfer, lease conveyance or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.1 hereof, each Subsidiary
Guarantor (unless such Subsidiary Guarantor is the Surviving Entity) shall
confirm by executing a supplemental indenture that its Subsidiary Guarantee
guarantees the Surviving Entity's Obligations under this Indenture and the
Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest, if any,
on the Notes when the same becomes due and payable and the Default
continues for a period of 30 days, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(2) the Company defaults in the payment of the principal of
or premium, if any, on the Notes, whether or not such payment is
prohibited by the provisions of Article 10 hereof;
(3) the Company or a Subsidiary Guarantor fails to observe or
perform any covenant, condition or agreement on
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the part of the Company or a Subsidiary Guarantor to be
observed or performed pursuant to Article 5 hereof;
(4) the Company fails to observe or perform any covenant,
condition or agreement on the part of the Company to be observed or
performed pursuant to Sections 4.3, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12,
4.13, 4.14, 4.16 and 4.17 hereof and the Default continues for the
period and after the notice specified below;
(5) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Notes or this
Indenture and the Default continues for consecutive days after the
notice specified below;
(6) except as permitted herein, any Subsidiary Guarantee shall
be held in any judicial proceeding to be unenforceable or invalid or
shall cease for any reason to be in full force and effect or a
Significant Subsidiary, or any Person acting on behalf of a Significant
Subsidiary, shall deny or disaffirm such Subsidiary Guarantor's
obligation under its Subsidiary Guarantee;
(7) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company
or any of its Significant Subsidiaries (or the payment of which is
guaranteed by the Company or any of its Significant Subsidiaries),
whether such Indebtedness or guarantee now exists or shall be created
hereafter, which default (a) is caused by a failure to pay principal of
such Indebtedness prior to the expiration of the grace period provided
in such Indebtedness on the date of such default (a "Payment Default")
or (b) results in the acceleration of such Indebtedness prior to its
express maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there is then existing a Payment Default or
the maturity of which has been so accelerated, aggregates $10 million
or more;
(8) a final non-appealable judgment or order or final
non-appealable judgments or orders are rendered against the Company or
any Restricted Subsidiary that remain unpaid or discharged for a period
of 60 days and that require the payment of money, either individually
or in an aggregate amount, in excess of $10 million;
(9) the Company or any Significant Subsidiary or any group of
Subsidiaries that, taken together, would constitute a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(a) commences a voluntary case or proceeding,
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(b) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(c) consents to the appointment of a Custodian of it
or for all or substantially all of its property or
(d) makes a general assignment for the benefit of its
creditors;
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against the Company or any
Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, in
an involuntary case or proceeding,
(b) appoints a Custodian of the Company, any
Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, or
for all or substantially all of the property of the Company,
any Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary, or
(c) orders the liquidation of the Company, any
Significant Subsidiary or any group of Subsidiaries that,
taken together, would constitute a Significant Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 consecutive days.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A Default under clause (4) is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the then outstanding Notes notify the Company and the Trustee, of the
Default and the Company does not cure the Default within 30 consecutive days
after receipt of the notice. A Default under clause (5) is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in principal amount of the then outstanding Notes notify the Company and the
Trustee, of the Default and the Company does not cure the Default within 60 days
after receipt of the notice. Each notice must specify the Default, demand that
it be remedied and state that the notice is a "Notice of Default."
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Section 6.2. ACCELERATION.
If an Event of Default (other than an Event of Default
specified in clauses (9) and (10) of Section 6.1 hereof) relating to the Company
or any Subsidiary Guarantor occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the then
outstanding Notes by written notice to the Company and the Trustee, may declare
the unpaid principal amount of and any accrued and unpaid interest on all the
Notes to be due and payable immediately. If payment of the Notes is accelerated
because of an Event of Default, the Company or the Trustee shall notify the
holders of Designated Senior Debt of such acceleration. Upon such declaration
the principal and interest shall be due and payable immediately; provided,
however, that so long as any Designated Senior Debt or any commitment therefor
is outstanding, any such notice or declaration shall not become effective until
the earlier of (a) five Business Days after such notice is delivered to the
representative for the Designated Senior Debt or (b) the acceleration of any
Designated Senior Debt and thereafter, payments on the Notes pursuant to this
Article 6 shall be made only to the extent permitted pursuant to Article 10
herein. Notwithstanding the foregoing, if any Event of Default specified in
clause (9) or (10) of Section 6.1 hereof relating to the Company, any
Significant Subsidiary or any group of Subsidiaries that, taken together, would
constitute a Significant Subsidiary occurs, such an amount shall ipso facto
become and be immediately due and payable without any declaration or other act
or notice on the part of the Trustee or any Holder.
After a declaration of acceleration under this Indenture, but
before a judgment or decree for payment of principal, premium, if any, and
interest on the Notes due under this Article 6 has been obtained by the Trustee,
Holders of a majority in principal amount of the then outstanding Notes by
written notice to the Company and the Trustee may rescind an acceleration and
its consequences if (i) the Company or any Subsidiary Guarantor has paid or
deposited with the Trustee a sum sufficient to pay (a) all sums paid or advanced
by the Trustee under this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and (b) all
overdue interest on the Notes, if any, (ii) the rescission would not conflict
with any judgment or decree of a court of competent jurisdiction and (iii) all
existing Events of Default (except nonpayment of principal, premium, if any, or
interest that has become due solely because of the acceleration) have been cured
or waived.
Section 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to
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enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
Section 6.4. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of principal of, premium and liquidated damages, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal amount
of the then outstanding Notes may rescind an acceleration and its consequences,
including any related payment default that resulted from such acceleration).
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 6.5. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any
trust or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability it being understood that (subject to
Section 7.1) the Trustee shall have no duty to ascertain whether or not such
actions or forebearances are unduly prejudicial to such holders.
Section 6.6. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice
of a continuing Event of Default;
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(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
Section 6.7. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium, if any,
and interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
Section 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(1) or (2)
occurs and is continuing, the Trustee is authorized to recover judgment in its
own name and as trustee of an express trust against the Company or any
Subsidiary Guarantor for the whole amount of principal of, premium, if any, and
interest remaining unpaid on the Notes and interest on overdue principal and, to
the extent lawful, interest and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
Section 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances
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of the Trustee, its agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company or any of the Subsidiary
Guarantors (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any money
or other property payable or deliverable on any such claims and any custodian in
any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee, and in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and may be
a member of the creditors' committee.
Section 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it
shall, subject to the provisions of Article 10, pay out the money in the
following order:
First: to the Trustee, its agents and attorneys for amounts
due under Sections 6.8 and 7.7 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee and the
costs and expenses of collection;
Second: to Senior Debt to the extent required by
Article 10;
Third: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, if any, and accrued interest, ratably, without
preference or priority of any kind, according to the amounts due and payable on
the Notes for principal, premium, if any, and accrued interest, as the case may
be, respectively; and
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Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes pursuant to this Section 6.10.
Section 6.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.7 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any notices,
requests, statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
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(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have furnished
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
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(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent (other
than any agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Subsidiary
Guarantor shall be sufficient if signed by an Officer of the Company or such
Subsidiary Guarantor.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have furnished to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Sections 4.1 and 4.4 hereof, the
Trustee shall have no duty to inquire as to the performance of the Company's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 4.1, 4.4 and 6.1(1) or (2) hereof or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification. For purposes of determining the Trustee's responsibility
hereunder, whenever reference is made in this Indenture to a Default or Event of
Default, such reference shall be construed to refer only to a Default or Event
of Default of which the Trustee is deemed to have notice pursuant to this
Section 7.2(g)
(h) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(i) the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any covenants, conditions, or agreements on
the part of the Company or any Subsidiary Guarantor, except as otherwise set
forth herein, but the Trustee may require of the Company full information and
advice as to the performance of the covenants, conditions and agreements
contained herein and shall be entitled in connection herewith to examine the
books, records and premises of the Company.
(j) The permissive rights of the Trustee to perform
the acts enumerated in this Indenture shall not be construed as a
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duty and the Trustee shall not be answerable for other than its gross negligence
or willful misconduct.
Section 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company, the
Subsidiary Guarantors or any Affiliate of the Company with the same rights it
would have if it were not Trustee. However, in the event that the Trustee
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue as trustee or resign.
Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
Section 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture, the Notes, or
the Subsidiary Guarantees, it shall not be accountable for the Company's use of
the proceeds from the Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or in any certificate delivered pursuant hereto or any statement
in the Notes or any other document in connection with the sale of the Notes or
pursuant to this Indenture other than its certificate of authentication.
Section 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and
if it is actually known to the Trustee, the Trustee shall mail to Holders of
Notes a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, or interest on, any Note, the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of the
Holders of the Notes.
Section 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA ss. 313(a) (but if no
event described in TIA ss. 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
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shall comply with TIA Section 313(b)(2) and transmit by mail all reports as
required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA ss.
313(d). The Company shall promptly notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.7. COMPENSATION AND INDEMNITY.
The Company and the Subsidiary Guarantors shall pay to the
Trustee from time to time reasonable compensation for its acceptance of this
Indenture and services hereunder, including, without limitation, extraordinary
services such as default administration. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
and the Subsidiary Guarantors shall reimburse the Trustee upon demand for all
reasonable disbursements, advances and expenses incurred or made by it in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustee's agents and
counsel.
The Company and the Subsidiary Guarantors shall indemnify the
Trustee against any and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company and the Subsidiary Guarantors (including this
Section 7.7) and investigating or defending itself against any claim (whether
asserted by the Company, the Subsidiary Guarantors or any Holder or any other
person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its gross negligence or bad faith. The Trustee
shall notify the Company and the Subsidiary Guarantors promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company and
the Subsidiary Guarantors shall not relieve the Company and the Subsidiary
Guarantors of their obligations hereunder. The Company and the Subsidiary
Guarantors shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company and the
Subsidiary Guarantors shall pay the reasonable fees and expenses of such
counsel. The Company and the Subsidiary Guarantors need not pay for any
settlement made without their consent, which consent shall not be unreasonably
withheld.
The obligations of the Company and the Subsidiary Guarantors
under this Section 7.7 are joint and several and shall survive the satisfaction
and discharge of this Indenture.
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To secure the Company's and the Subsidiary Guarantors' payment
obligations in this Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee. Such Lien shall survive
the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.1(9) or (10) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
Section 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders of Notes of a majority in principal amount of the then outstanding Notes
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders of Notes of at least 10% in principal amount of the then
outstanding Notes may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.7 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.8, the Company's obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee.
Section 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. PREFERENTIAL COLLECTION OF CLAIMS
AGAINST COMPANY.
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.2 or 8.3 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
Section 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.2, the Company and the Subsidiary Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be deemed to have been discharged from their obligations with respect to
all outstanding Notes and the Subsidiary Guarantees thereof on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.5 hereof and the other Sections of this Indenture referred
to in (a) and (b) below, and to have satisfied all its other obligations under
such Notes and this Indenture (and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, premium, if any, and interest on such
Notes when such payments are due from the trust fund described in Section 8.4
hereof, and as more fully set forth in such Section, (b) the Company's
obligations with respect to such Notes under Article 2 and Section 4.2 hereof,
(c) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and the Company's obligations in connection therewith and (d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 hereof.
Section 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the
option applicable to this Section 8.3, the Company and the Subsidiary Guarantors
shall, subject to the satisfaction of the conditions set forth in Section 8.4
hereof, be released from their obligations under the covenants contained in
Sections 4.3, 4.5, 4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16 and 4.17
hereof and in clause (iv) of Section 5.1 and the covenants contained in the
Subsidiary Guarantees with respect to the
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outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any compliance certificate,
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture, such
Notes and such Subsidiary Guarantees shall be unaffected thereby. In addition,
upon the Company's exercise under Section 8.1 hereof of the option applicable to
this Section 8.3 hereof, subject to the satisfaction of the conditions set forth
in Section 8.4 hereof, Sections 6.1(3) (but only with respect to the Company's
failure to observe or perform the covenants, conditions and agreements of the
Company under clause (iv) of Section 5.1), 6.1(4), 6.1(7) and 6.1(8) hereof
shall not constitute Events of Default.
Section 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.2 or 8.3 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders of the Notes, cash in United States
dollars, non-callable Government Securities, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest, on the outstanding Notes on the stated maturity or on the applicable
redemption date, as the case may be, and the Company must specify whether the
Notes are being defeased to maturity or to a particular redemption date;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
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ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit) or insofar
as Section 6.1(9) or 6.1(10) hereof is concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the 91st day following the deposit, the
trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company shall deliver to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Notes over the other creditors of the Company,
or with the intent of defeating, hindering, delaying or defrauding creditors of
the Company or others; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
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Section 8.5. DEPOSITED MONEY AND GOVERNMENT SECURITIES
TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 hereof in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company and the Subsidiary Guarantors shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.4 hereof or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money or non-callable Government Securities held by
it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.4(a) hereof), are in excess of the amount thereof that
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 8.6. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Note and remaining unclaimed for two years after such
principal, premium, if any, or interest has become due and payable shall be paid
to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money
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remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or non-callable Government Securities in accordance with Section
8.2 or 8.3 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations of the Company and the Subsidiary
Guarantors under this Indenture, the Notes and the Subsidiary Guarantees shall
be revived and reinstated as though no deposit had occurred pursuant to Section
8.2 or 8.3 hereof, as the case may be; provided, however, that if the Company or
any Subsidiary Guarantor makes any payment of principal of, premium, if any, or
interest on any Note following the reinstatement of its obligations, the Company
or such Subsidiary Guarantor shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.2 of this Indenture, the Company,
the Subsidiary Guarantors and the Trustee may amend or supplement this
Indenture, the Notes or the Subsidiary Guarantees without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities (provided, however, that the
uncertificated Securities are issued in registered form for purposes of
section 163(f) of the Code, or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code);
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation
pursuant to Article 5 hereof;
(d) to make any change that would provide any additional
rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights hereunder of any Holder of the Note;
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(e) to secure the Notes; or
(f) to comply with requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, as
the case may be, authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
7.2 hereof, the Trustee shall join with the Company and the Subsidiary
Guarantors in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture,
the Notes and the Subsidiary Guarantees with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for the Notes), and, subject to Sections
6.4 and 6.7 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Notes or compliance with any provision of this Indenture, the
Notes or the Subsidiary Guarantees may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Notes (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for the Notes).
In addition, any amendment to the provisions of Article 10 of
this Indenture shall require the consent of the Holders of at least 66 2/3% in
aggregate principal amount of the Notes then outstanding if such amendment would
adversely affect the rights of Holders of Notes; provided that, no amendment may
be made to the provisions of Article 10 of this Indenture that adversely affects
the rights of any holder of Senior Debt then outstanding unless the holders of
such Senior Debt (or any group or representative thereof authorized to consent)
consent to such change.
Subject to Sections 6.4 and 6.7 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company or any Subsidiary Guarantor
with any provision of this
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Indenture, the Notes or the Subsidiary Guarantees. However, without the consent
of each Holder affected, an amendment or waiver may not (with respect to any
Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of
any Note or alter the provisions with respect to the redemption of the
Notes (except as provided above with respect to Sections 3.9, 4.10 and
4.13 hereof);
(c) reduce the rate of or change the time for payment
of interest on any Note;
(d) waive a Default or Event of Default in the payment of
principal of the Notes (except a rescission of acceleration of the
Notes by the Holders of at least a majority in principal amount of the
Notes and a waiver of the payment default that resulted from such
acceleration);
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of Notes
to receive payments of principal or premium, if any, or interest on the
Notes; or
(g) make any change in the foregoing amendment and
waiver provisions.
Upon the request of the Company accompanied by a resolution of
the Board of Directors of the Company and each of the Subsidiary Guarantors, as
the case may be, authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.2 hereof, the Trustee shall
join with the Company and the Subsidiary Guarantors in the execution of such
amended or supplemental indenture unless such amended or supplemental indenture
affects the Trustee's own rights, duties or immunities under this indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
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After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
Section 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
Section 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
Section 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Company in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.6. TRUSTEE TO SIGN AMENDMENT, ETC.
The Trustee shall sign any amended or supplemental indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
Neither the Company nor any Subsidiary Guarantor may sign an amendment or
supplemental Indenture until its respective Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 7.1) shall be fully protected in relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is authorized or
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permitted by this Indenture and that there has been compliance with all
conditions precedent.
ARTICLE 10
SUBORDINATION
Section 10.1. AGREEMENT TO SUBORDINATE.
The Company and each Subsidiary Guarantor agree, and each
Holder by accepting a Note and the related Subsidiary Guarantee agrees, that (i)
the Indebtedness evidenced by (a) the Notes, including, but not limited to, the
payment of principal of, premium, if any, and interest on the Notes, and any
other payment Obligation of the Company in respect of the Notes (including any
obligation to repurchase the Notes) is subordinated in right of payment, to the
extent and in the manner provided in this Article, to the prior payment in full
in cash of all Senior Debt of the Company (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and (b) the
Subsidiary Guarantees and other payment Obligations in respect of the Subsidiary
Guarantees are subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full in cash of all Senior
Debt of each Subsidiary Guarantor and (ii) the subordination is for the benefit
of the Holders of Senior Debt.
Section 10.2. CERTAIN DEFINITIONS.
"Bankruptcy Law" means title 11, U.S. Code or any
similar Federal or state law for the relief of debtors.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt.
"Senior Debt" means (i) Indebtedness of the Company or any
Subsidiary of the Company under or in respect of any Credit Facility, whether
for principal, interest (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law, whether or
not the claim for such interest is allowed as a claim in such proceeding),
reimbursement obligations, fees, commissions, expenses, indemnities or other
amounts, and (ii) any other Indebtedness permitted under the terms of this
Indenture, unless the instrument under which such Indebtedness is incurred
expressly provides that it is on a parity with or subordinated in right of
payment to the Notes. Notwithstanding anything to the contrary in the foregoing
sentence, Senior Debt will not include (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) any Indebtedness of the
Company to any of its Subsidiaries or other Affiliates, (y) any trade payables
or (z) any Indebtedness that is incurred in violation of this Indenture (other
than Indebtedness under (i) the New Credit Agreement or (ii) any other Credit
Facility that is incurred on the basis of a
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representation by the Company to the applicable lenders that it is permitted to
incur such Indebtedness under this Indenture).
A "distribution" may consist of cash, securities or other
property, by set-off or otherwise.
All Designated Senior Debt now or hereafter existing and all
other Obligations relating thereto shall not be deemed to have been paid in full
unless the holders or owners thereof shall have received payment in full in cash
(or other form of payment consented to by the holders of such Designated Senior
Debt) with respect to such Designated Senior Debt and all other Obligations with
respect thereto.
Section 10.3. LIQUIDATION; DISSOLUTION; BANKRUPTCY.
(a) Upon any payment or distribution of property or securities
to creditors of the Company in a liquidation or dissolution of the Company or in
a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property, or in an assignment for the benefit of
creditors or any marshalling of the Company's assets and liabilities:
(1) the holders of Senior Debt of the Company shall be
entitled to receive payment in full in cash of all Obligations in
respect of such Senior Debt (including interest after the commencement
of any such proceeding at the rate specified in the applicable Senior
Debt, whether or not a claim for such interest would be allowed in such
proceeding) before the Holders of Notes shall be entitled to receive
any payment with respect to the Notes and related Obligations (except
in each case that Holders of Notes may receive securities that are
subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made
from any defeasance trust created pursuant to Section 8.1 hereof
provided that the applicable deposit does not violate Article 8 or 10
of this Indenture); and
(2) until all Obligations with respect to Senior Debt of the
Company (as provided in subsection (1) above) are paid in full in cash,
any payment or distribution to which the Holders of Notes and the
related Subsidiary Guarantees would be entitled shall be made to
holders of Senior Debt of the Company (except that Holders of Notes and
the related Subsidiary Guarantees may receive securities that are
subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made
from any defeasance trust created pursuant to Section 8.1 hereof
provided that the applicable deposit does not violate Article 8 or 10
of this Indenture).
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(b) Upon any payment or distribution of property or securities
to creditors of a Subsidiary Guarantor in a liquidation or dissolution of such
Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to such Subsidiary Guarantor or its
property, or in an assignment for the benefit of creditors or any marshalling of
such Subsidiary Guarantor's assets and liabilities:
(1) the holders of Senior Debt of such Subsidiary Guarantor
shall be entitled to receive payment in full in cash of all Obligations
in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in the
applicable Senior Debt, whether or not a claim for such interest would
be allowed in such proceeding) before the Holders of Notes and the
related Subsidiary Guarantees shall be entitled to receive any payment
or distribution with respect to the Subsidiary Guarantee made by such
Subsidiary Guarantor (except in each case that Holders of Notes and the
related Subsidiary Guarantees may receive securities that are
subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made
from any defeasance trust created pursuant to Section 8.1 hereof
provided that the applicable deposit does not violate Article 8 or 10
of this Indenture); and
(2) until all Obligations with respect to Senior Debt of such
Subsidiary Guarantor (as provided in subsection (1) above) are paid in
full in cash, any payment or distribution to which the Holders of Notes
and the related Subsidiary Guarantees would be entitled shall be made
to holders of Senior Debt of such Subsidiary Guarantor (except that
Holders of Notes and the related Subsidiary Guarantees may receive
securities that are subordinated at least to the same extent as the
Notes to Senior Debt and any securities issued in exchange for Senior
Debt and payments made from any defeasance trust created pursuant to
Section 8.1 hereof provided that the applicable deposit does not
violate Article 8 or 10 of this Indenture).
Under the circumstances described in this Section 10.3, the
Company, any Subsidiary Guarantor or any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar person making any payment or
distribution of cash or other property or securities is authorized or instructed
to make any payment or distribution to which the Holders of the Notes and the
related Subsidiary Guarantees would otherwise be entitled (other than securities
that are subordinated at least to the same extent as the Notes to Senior Debt
and any securities issued in exchange for Senior Debt and payments made from any
defeasance trust referred to in the second parenthetical clause of each of
clauses (a)(1), (b)(1), (c)(1), (a)(2), (b)(2) and (c)(2) above, which
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shall be delivered or paid to the Holders of Notes as set forth in such clauses)
directly to the holders of the Senior Debt of the Company and any Subsidiary
Guarantor, as applicable, (pro rata to such holders on the basis of the
respective amounts of Senior Debt of the Company and any Subsidiary Guarantor,
as applicable, held by such holders) or their Representatives, or to any trustee
or trustees under any other indenture pursuant to which any such Senior Debt may
have been issued, as their respective interests appear, to the extent necessary
to pay all such Senior Debt in full, in cash or cash equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of such Senior Debt.
To the extent any payment of or distribution in respect of
Senior Debt (whether by or on behalf of the Company or any Subsidiary Guarantor,
as proceeds of security or enforcement of any right of setoff or otherwise) is
declared to be fraudulent or preferential, set aside or required to be paid to
any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then if such payment or distribution is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. To the extent the obligation to repay any Senior Debt is
declared to be fraudulent, invalid or otherwise set aside under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then the
obligation so declared fraudulent, invalid or otherwise set aside (and all other
amounts that would come due with respect thereto had such obligation not been so
affected) shall be deemed to be reinstated and outstanding as Senior Debt for
all purposes hereof as if such declaration, invalidity or setting aside had not
occurred.
Section 10.4. DEFAULT ON DESIGNATED SENIOR DEBT.
The Company and the Subsidiary Guarantors may not make any
payment (whether by redemption, purchase, retirements, defeasance or otherwise)
upon or in respect of the Notes and the related Subsidiary Guarantees (other
than securities that are subordinated at least to the same extent as the Notes
to Senior Debt and any securities issued in exchange for Senior Debt and
payments and other distributions made from any defeasance trust created pursuant
to Section 8.1 hereof if the applicable deposit does not violate Article 8 or 10
of this Indenture) until all principal and other Obligations with respect to the
Senior Debt of the Company have been paid in full if:
(i) a default in the payment of any principal of,
premium, if any, or interest on Designated Senior Debt
occurs; or
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(ii) any other default occurs and is continuing with
respect to Designated Senior Debt that permits, or with the giving of
notice or passage of time or both (unless cured or waived) would
permit, holders of the Designated Senior Debt as to which such default
relates to accelerate its maturity and the Trustee receives a notice of
the default (a "Payment Blockage Notice") from the Company or the
holders of any Designated Senior Debt. If the Trustee receives any such
Payment Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section unless and until 360 days shall
have elapsed since the date of commencement of the payment blockage
period resulting from the immediately prior Payment Blockage Notice. No
nonpayment default in respect of any Designated Senior Debt that
existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall have been
cured or waived for a period of no less than 90 days.
The Company shall resume payments on and distributions in
respect of the Notes and any Subsidiary Guarantor shall resume making payments
and distributions pursuant to the Subsidiary Guarantees upon:
(1) in the case of a default referred to in Section
10.4(i) hereof the date upon which the default is cured or
waived, or
(2) in the case of a default referred to in Section 10.4(ii)
hereof, the earliest of (1) the date on which such nonpayment default
is cured or waived or (2) 179 days after the date on which the
applicable Payment Blockage Notice is received unless (A) the maturity
of any Designated Senior Debt has been accelerated or (B) a Default or
Event of Default under Section 6.1(9) or (10) has occurred and is
continuing,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
Section 10.5. ACCELERATION OF NOTES.
If payment of the Notes is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
Section 10.6. WHEN DISTRIBUTION MUST BE PAID OVER.
In the event that the Trustee or any Holder receives any
payment or distribution of or in respect of any Obligations with respect to the
Notes or the Subsidiary Guarantees at a time when such payment or distribution
is prohibited by Section 10.3 or Section 10.4 hereof, such payment or
distribution shall be
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held by the Trustee (if the Trustee has actual knowledge that such payment or
distribution is prohibited by Section 10.3 or 10.4) or such Holder, in trust for
the benefit of, and shall be paid forthwith over and delivered to, the holders
of Senior Debt as their interests may appear or their Representative under the
indenture or other agreement (if any) pursuant to which such Senior Debt may
have been issued, as their respective interests may appear, for application to
the payment of all Obligations with respect to Senior Debt remaining unpaid to
the extent necessary to pay such Obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and, except as provided in Section
10.12, shall not be liable to any such holders if the Trustee shall pay over or
distribute to or on behalf of Holders of Notes or the Company, the Subsidiary
Guarantors or any other Person money or assets to which any holders of Senior
Debt shall be entitled by virtue of this Article 10, except if such payment is
made as a result of the willful misconduct or gross negligence of the Trustee.
Section 10.7. NOTICE BY COMPANY.
The Company and the Subsidiary Guarantors shall promptly
notify the Trustee and the Paying Agent of any facts known to the Company or any
Subsidiary Guarantor that would cause a payment of any Obligations with respect
to the Notes or the related Subsidiary Guarantees to violate this Article, but
failure to give such notice shall not affect the subordination of the Notes and
the related Subsidiary Guarantees to the Senior Debt as provided in this
Article.
Section 10.8. SUBROGATION.
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders of Notes and the related Subsidiary Guarantees shall be
subrogated (equally and ratably with all other Indebtedness pari passu with the
Notes and the Subsidiary Guarantees) to the rights of holders of Senior Debt to
receive distributions and payments applicable to Senior Debt to the extent that
distributions and payments otherwise payable to the Holders of Notes and the
related Subsidiary Guarantees have been applied to the payment of Senior Debt. A
payment or distribution made under this Article to holders of Senior Debt that
otherwise would have been made to Holders of Notes and the related Subsidiary
Guarantees is not, as between the Company and Holders of Notes, a payment by the
Company on the Notes.
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Section 10.9. RELATIVE RIGHTS.
This Article defines the relative rights of Holders of Notes
and the related Subsidiary Guarantees and holders of Senior Debt. Nothing in
this Indenture shall:
(1) impair, as between the Company and Holders of Notes, the
obligation of the Company, which is absolute and unconditional, to pay
principal of and interest on the Notes in accordance with their terms;
(2) affect the relative rights of Holders of Notes and the
related Subsidiary Guarantees and creditors of the Company other than
their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt to receive distributions
and payments otherwise payable to Holders of Notes and the related
Subsidiary Guarantees.
If the Company fails because of this Article to pay principal
of or interest on a Note on the due date, the failure is still a Default or
Event of Default.
Section 10.10. SUBORDINATION MAY NOT BE IMPAIRED BY
COMPANY OR THE SUBSIDIARY GUARANTORS.
No right of any present or future holders of any Senior Debt
to enforce subordination as provided in this Article Ten will at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Company or any Subsidiary Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or any
Subsidiary Guarantor with the terms of this Indenture, regardless of any
knowledge thereof that any such holder of Senior Debt may have or otherwise be
charged with. The provisions of this Article Ten are intended to be for the
benefit of, and shall be enforceable directly by, the holders of Senior Debt.
Section 10.11. PAYMENT, DISTRIBUTION OR NOTICE TO
REPRESENTATIVE.
Whenever a payment or distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets or securities of
the Company or any Subsidiary Guarantor referred to in this Article 10, the
Trustee and the Holders of Notes and the related Subsidiary Guarantees shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such Representative or of the
liquidating
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trustee or agent or other Person making any payment or distribution to the
Trustee or to the Holders of Notes and the related Subsidiary Guarantees for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other Indebtedness of the
Company or any Subsidiary Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 10.
Section 10.12. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes and the Subsidiary Guarantees, unless the Trustee
shall have received at its Corporate Trust Office at least one Business Day
prior to the date of such payment written notice of facts that would cause the
payment of any Obligations with respect to the Notes or Subsidiary Guarantees to
violate this Article, which notice shall specifically refer to Section 10.3 or
10.4 hereof. Only the Company or a Representative may give the notice. Nothing
in this Article 10 shall impair the claims of, or payments to, the Trustee under
or pursuant to Section 7.7 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
Section 10.13. AUTHORIZATION TO EFFECT SUBORDINATION.
Each Holder by the Holder's acceptance thereof authorizes and
directs the Trustee on the Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article 10, and appoints the Trustee to act as the Holder's attorney-in-fact for
any and all such purposes. If the Trustee does not file a proper proof of claim
or proof of debt in the form required in any proceeding referred to in Section
6.9 hereof at least 30 days before the expiration of the time to file such
claim, each lender under the New Credit Agreement is hereby authorized to file
an appropriate claim for and on behalf of the Holders of the Notes and the
related Subsidiary Guarantees.
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Section 10.14. AMENDMENTS.
No amendment may be made to the provisions of or the
definitions of any terms appearing in this Article 10, or to the provisions of
Section 6.2 relating to the Designated Senior Debt, that adversely affects the
rights of any holder of Senior Debt then outstanding unless the holders of such
Senior Debt (or any group or Representative authorized to give a consent)
consent to such change.
Section 10.15. NO WAIVER OF SUBORDINATION PROVISIONS.
Without in any way limiting the generality of Section 10.9 of
this Indenture, the holders of Senior Debt may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders to the holders of Senior Debt, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Debt or any instrument evidencing the same or any
agreement under which Senior Debt is outstanding or secured; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (c) release any Person liable in any manner for the
collection of Senior Debt; and (d) exercise or refrain from exercising any
rights against the Company and each Subsidiary Guarantor and any other Person.
ARTICLE 11
THE SUBSIDIARY GUARANTEES
Section 11.1. THE SUBSIDIARY GUARANTEES.
Each of the Subsidiary Guarantors hereby, jointly and
severally, unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of and premium and interest, on the Notes shall be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on premium and interest, on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same shall be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so
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guaranteed for whatever reason, the Subsidiary Guarantors shall be jointly and
severally obligated to pay the same immediately. The Subsidiary Guarantors
hereby agree that their obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by any Holder with respect to any provisions hereof or thereof, the recovery of
any judgment against the Company, any action to enforce the same or any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. Each of the Subsidiary Guarantors hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenant that this Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture. If any Holder or the Trustee is required by any court or otherwise to
return to the Company or the Subsidiary Guarantors, or any Custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or
the Subsidiary Guarantors, any amount paid by either to the Trustee or such
Holder, this Subsidiary Guarantee, to the extent theretofore discharged, shall
be reinstated in full force and effect. Each of the Subsidiary Guarantors agrees
that it shall not be entitled to any right of subrogation in relation to the
Holders of Notes in respect of any obligations guaranteed hereby until payment
in full of all obligations guaranteed hereby. Each of the Subsidiary Guarantors
further agrees that, as between the Subsidiary Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article 6 for
the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6, such obligations (whether or not due
and payable) shall forthwith become due and payable by the Subsidiary Guarantors
for the purpose of this Subsidiary Guarantee. The Subsidiary Guarantors shall
have the right to seek contribution from any Subsidiary Guarantor not paying so
long as the exercise of such right does not impair the rights of the Holders
under the Subsidiary Guarantees.
Section 11.2. EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEES.
(i) To evidence its Subsidiary Guarantee set forth in Section
11.1, each of the Subsidiary Guarantors hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form of Exhibit C shall be endorsed by
an officer of such Subsidiary Guarantor on each Note authenticated and delivered
by the Trustee, that this Indenture shall be executed on behalf of such
Subsidiary Guarantor by its President or one of its Vice
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Presidents and attested to by an Officer and that such Subsidiary Guarantor
shall deliver to the Trustee an Opinion of Counsel that the foregoing have been
duly authorized, executed and delivered by such Subsidiary Guarantor and that
such Subsidiary Guarantee is a valid and legally binding obligation of such
Subsidiary Guarantor, enforceable against such Subsidiary Guarantor in
accordance with its terms.
Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 11.1 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
applicable Subsidiary Guarantee no longer holds that office at the time the
Trustee authenticates the Note on which such Subsidiary Guarantee is endorsed,
such Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantees set forth in this Indenture on behalf of the Subsidiary
Guarantors.
Section 11.3. SUBSIDIARY GUARANTORS MAY CONSOLIDATE,
ETC., ON CERTAIN TERMS.
No Subsidiary Guarantor may consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the Surviving Person), another
Person other than the Company or another Subsidiary Guarantor, whether or not
affiliated with such Subsidiary Guarantor, unless:
(a) subject to the provisions of Section 11.4 hereof, the
Person formed by or surviving any such consolidation or merger (if
other than such Subsidiary Guarantor) assumes all the obligations of
such Subsidiary Guarantor pursuant to a supplemental indenture in form
reasonably satisfactory to the Trustee in respect of the Notes, this
Indenture and such Subsidiary Guarantor's Guarantee;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) such transaction does not violate any of Sections 4.3,
4.7, 4.8, 4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16 and 4.17.
Notwithstanding the foregoing, none of the Subsidiary Guarantors shall be
permitted to consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person), another corporation, Person or
entity pursuant to the preceding sentence if such consolidation or merger would
not be permitted by Section 5.1 hereof.
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In case of any such consolidation or merger and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Subsidiary Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Indenture to be
performed by such Subsidiary Guarantor, such successor corporation shall succeed
to and be substituted for such Subsidiary Guarantor with the same effect as if
it had been named herein as a Subsidiary Guarantor. Such successor corporation
thereupon may cause to be signed any or all of the Subsidiary Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Subsidiary
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Subsidiary Guarantees theretofore and thereafter
issued in accordance with the terms of this Indenture as though all of such
Subsidiary Guarantees had been issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of any Subsidiary Guarantor with or into the Company or
another Subsidiary Guarantor, or shall prevent any sale or conveyance of the
property of any Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or any Subsidiary Guarantor.
Section 11.4. RELEASES OF SUBSIDIARY GUARANTEES.
In the event of a sale or other disposition of all or
substantially all of the assets of any Subsidiary Guarantor or a sale or other
disposition of all of the capital stock of any Subsidiary Guarantor, to any
corporation or other Person (including an Unrestricted Subsidiary) by way of
merger, consolidation, or otherwise, in a transaction that does not violate any
of the covenants of this Indenture, then such Subsidiary Guarantor (in the event
of a sale or other disposition, by way of such merger, consolidation or
otherwise, of all the capital stock of such Subsidiary Guarantor) shall be
released and relieved of any obligations under its Subsidiary Guarantee and such
acquiring corporation or other Person (in the event of a sale or other
disposition of all or substantially all of the assets of such Subsidiary
Guarantor), if other than a Subsidiary Guarantor, shall have no obligation to
assume or otherwise become liable under such Subsidiary Guarantee; provided,
that the Net Proceeds of such sale or other disposition are applied in
accordance with Section 4.10 hereof. Upon delivery by the Company to the Trustee
of an Officers' Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in accordance with the
provisions of this Indenture, including without limitation Section 4.10, the
Trustee shall execute any documents reasonably required in order to evidence the
release of any
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Subsidiary Guarantor from its obligations under its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of such
Subsidiary Guarantor under this Indenture as provided in this Article 11.
Any Subsidiary Guarantor that is designated an Unrestricted
Subsidiary in accordance with the terms of this Indenture shall, upon such
designation, be released from and relieved of its obligations under its
Subsidiary Guarantee and any Unrestricted Subsidiary whose obligation as such is
revoked and any newly created or newly acquired Subsidiary that is or becomes a
Restricted Subsidiary shall be required to execute a Subsidiary Guarantee in
accordance with the terms of this Indenture.
Section 11.5. LIMITATION ON SUBSIDIARY GUARANTOR
LIABILITY.
For purposes hereof, each Subsidiary Guarantor's liability
shall be that amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor thereunder, but shall be limited to the lesser of (i) the
aggregate amount of the Obligations of the Company under the Notes and this
Indenture and (ii) the amount, if any, which would not have (A) rendered such
Subsidiary Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Law and in the Debtor and Creditor Law of the State of New York) or
(B) left it with unreasonably small capital at the time its Subsidiary Guarantee
of the Notes was entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; provided that, it shall be a
presumption in any lawsuit or other proceeding in which such Subsidiary
Guarantor is a party that the amount guaranteed pursuant to its Subsidiary
Guarantee is the amount set forth in clause (i) above unless any creditor, or
representative of creditors of such Subsidiary Guarantor, or debtor in
possession or trustee in bankruptcy of such Subsidiary Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of such Subsidiary
Guarantor is limited to the amount set forth in clause (ii). In making any
determination as to the solvency or sufficiency of capital of a Subsidiary
Guarantor in accordance with the previous sentence, the right of such Subsidiary
Guarantor to contribution from other Subsidiary Guarantors and any other rights
such Subsidiary Guarantor may have, contractual or otherwise, shall be taken
into account.
Section 11.6. "TRUSTEE" TO INCLUDE PAYING AGENT.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in Article 10 and
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this Article 11 shall in such case (unless the context shall otherwise require)
be construed as extending to and including such Paying Agent within its meaning
as fully and for all intents and purposes as if such Paying Agent were named in
Article 10 and this Article 11 in place of the Trustee.
Section 11.7. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each of the Subsidiary Guarantors under its
Subsidiary Guarantee pursuant to this Article 11 shall be junior and
subordinated to the Senior Debt of the Subsidiary Guarantor pursuant to Article
10 hereof. For the purposes of the foregoing sentence, the Trustee and the
Holders shall have the right to receive and/or retain payments or distributions
by or on behalf of any of the Subsidiary Guarantors only at such times as they
may receive and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article 10 hereof.
ARTICLE 12
MISCELLANEOUS
Section 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA ss. 318(c), the imposed duties shall
control. If any provisions of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, the letter provision shall be
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
Section 12.2. NOTICES.
Any notice or communication by the Company or the Subsidiary
Guarantors or the Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing next
day delivery, to the others' address:
If to the Company or any Subsidiary Guarantor:
Belden & Blake Corporation
5200 Stoneham Road
North Canton, Ohio 44720
Telecopier No.: (330) 497-5470
Attention: Joseph M. Vitale
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With a copies to:
Black, McCuskey, Soures & Arbaugh
1000 United Bank Plaza
220 Market Avenue South
Canton, Ohio 44702
Telecopier No.: (330) 456-5756
Attention: Anthony E. Effromoff
and
Kelly, Hart & Hallman
201 Main Street
Suite 2500
Fort Worth, Texas 76102
Telecopier No.: (817) 878-9285
Attention: Kevin G. Levy
If to the Trustee:
LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Telecopier No.:
Attention:
Ref: Belden & Blake Corporation
The Company or any Subsidiary Guarantor or the Trustee, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by hand,
if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if by telecopy; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required by
the TIA. Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
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If the Company or any Subsidiary Guarantor mails a notice or
communication to Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
Section 12.3. COMMUNICATION BY HOLDERS OF NOTES WITH
OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone else
shall have the protection of TIA ss. 312(c).
Section 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT.
Upon any request or application by the Company or any
Subsidiary Guarantor to the Trustee to take any action under this Indenture, the
Company or such Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.5 hereof) stating that, in the opinion of the
signers, all conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
Section 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is
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necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 12.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS,
EMPLOYEES AND STOCKHOLDERS.
No director, officer, employee, incorporator or stockholder of
the Company or any Subsidiary, as such, shall have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes, by accepting a Note, waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Commission that such a waiver
is against public policy.
Section 12.8. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE SUBSIDIARY GUARANTEES.
Section 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or their respective
Subsidiaries or of any other Person. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture and the Subsidiary Guarantees.
Section 12.10. SUCCESSORS.
All agreements of the Company and each Subsidiary Guarantor in
this Indenture, the Notes and the Subsidiary Guarantees shall bind its
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
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Section 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
105
SIGNATURES
Dated as of
_________, 1997
BELDEN & BLAKE CORPORATION
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
THE CANTON OIL & GAS COMPANY
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
PEAKE ENERGY, INC.
Attest: By:________________________________
Name:______________________________
__________________________ Tile:______________________________
WARD LAKE DRILLING, INC.
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
TARGET OILFIELD PIPE & SUPPLY
COMPANY
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
LASALLE NATIONAL BANK
Attest: By:________________________________
Name:______________________________
__________________________ Title:_____________________________
106
EXHIBIT A
[FORM OF FACE OF INITIAL NOTE]
SERIES A NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES,
ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS
PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY, ANY SUBSIDIARY GUARANTOR OR ANY AFFILIATE OF THE COMPANY OR ANY
SUBSIDIARY GUARANTOR WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT THAT
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, IN A TRANSACTION COMPLYING WITH THE REQUIREMENTS OF RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT
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PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULES 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000 FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND IN THE CASE OF ANY OF THE FOREGOING CLAUSES (A)-(F), A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY
IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
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BELDEN & BLAKE CORPORATION
9 7/8% Senior Subordinated Notes due 2007
No. 1 $225,000,000
CUSIP Number: 077447 AA 8
BELDEN & BLAKE CORPORATION, an Ohio corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of Two Hundred
Twenty-Five Million Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: June 27, 1997
BELDEN & BLAKE CORPORATION
By
----------------------------
Name:
Title:
By
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
LASALLE NATIONAL BANK,
as Trustee, certifies that this is
one of the Notes referred to in the
within-mentioned Indenture:
By
----------------------------
Authorized Signatory
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Dated: June 27, 1997
(Back of Note)
9 7/8% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Belden & Blake Corporation, an Ohio corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate of 9 7/8% per annum, which interest shall be payable in cash
semiannually in arrears on each June 15 and December 15, or if any such day is
not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"); provided that the first Interest Payment Date shall be December
15, 1997. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this Note
as of the close of business on the June 1 or December 1 immediately preceding
such Interest Payment Date, even if this Note is cancelled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. Principal, premium, if
any, and interest on this Note will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York or, in
the event the Notes do not remain in book-entry form, at the option of the
Company, payment of interest may be made by check mailed to the Holder of this
Note at its address set forth in the register of Holders of Notes; provided that
all payments with respect to the Global Notes and Definitive Notes having an
aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. PAYING AGENT AND REGISTRAR. Initially, LaSalle National
Bank, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or
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any Subsidiary Guarantor or any other of the Company's Subsidiaries may act in
any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of June 27, 1997 ("Indenture") among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are general unsecured
obligations of the Company equal in an aggregate principal amount to
$225,000,000 and will mature on June 15, 2007.
The Notes are general unsecured senior subordinated
obligations of the Company limited to $225,000,000 million aggregate principal
amount (subject to Section 2.6 of the Indenture). This Note is one of the
Initial Notes referred to in the Indenture. The Notes include the Initial Notes
and any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on the incurrence of Indebtedness by
the Company and its Restricted Subsidiaries, the payment of dividends and other
distributions on the Capital Stock of the Company and its Restricted
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases or redemptions
of Subordinated Indebtedness, the sale or transfer of assets and Capital Stock
of Restricted Subsidiaries, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Subsidiaries and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. OPTIONAL REDEMPTION.
(a) The Notes are not redeemable at the Company's option prior
to June 15, 2002. From and after June 15, 2002, the Notes will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2002...................................... 104.938%
2003...................................... 103.292%
2004 ..................................... 101.646%
2005 and thereafter ...................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, prior to June 15, 2000 the Company may, at its option, on any one
or more occasions, redeem up to 40% of the original aggregate principal amount
of Notes at a redemption price equal to 109.875% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the redemption
date, with the net proceeds of sales of public Equity Interests of the Company;
provided that at least 60% of the original aggregate principal amount of Notes
must remain outstanding immediately after the occurrence of such redemption; and
provided, further, that any such redemption shall occur within 60 days after the
date of the closing of the related sale of such Equity Interests.
(c) Notwithstanding the provisions of clause (a) of this
Paragraph 5, upon the occurrence of a Change of Control at any time on or prior
to June 15, 2002, the Company may, at its option, redeem in whole but not in
part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, to, the date of redemption (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) provided that such redemption shall be made no more than 90 days
after the occurrence of a Change of Control. The Company shall notify the
Trustee and, by mail, the Holders of the Notes of its decision to redeem the
Notes pursuant to this Paragraph 5(c) within 30 days of the occurrence of a
Change of Control.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Notes pursuant to paragraph 5(c), each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, thereon to the date of purchase (the "Change of Control
Payment"). The right of the
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Holders of the Notes to require the Company to repurchase such Notes upon a
Change of Control may not be waived by the Trustee without the approval of the
Holders of the Notes required by Section 9.2 of the Indenture. Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes pursuant to the procedures required by the
Indenture and described in such notice. The Change of Control Payment shall be
made on a business day not less than 30 days nor more than 60 days after such
notice is mailed. The Company and each Subsidiary Guarantor will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Notes and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to, in the
case of the Notes, 100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of purchase or, in the case of any Pari Passu
Indebtedness, 100% of the principal amount thereof (or with respect to discount
Pari Passu Indebtedness, the accreted value thereof) on the date of purchase, in
each case, in accordance with the procedures set forth in Section 3.9 of the
Indenture or the agreements governing the Pari Passu Indebtedness, as
applicable. To the extent that the aggregate principal amount (or accreted
value, as the case may be) of Notes, and Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the sum
of (i) the aggregate principal amount of Notes surrendered by Holders thereof
and (ii) the aggregate principal amount or accreted value, as the case may be,
of Pari Passu Indebtedness surrendered by holders or lenders thereof exceeds the
amount of Excess Proceeds, the Trustee and the trustee or other lender
representative for the Pari Passu Indebtedness shall select the Notes and the
other Pari Passu Indebtedness to be purchased on a pro rata basis, based on the
aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon completion of such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than
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$1,000 may be redeemed in part but only in integral multiples of $1,000, unless
all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on the aggregate principal amount of
the Notes called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes may be issued
initially in the form of one or more fully registered Global Notes. The Notes
may also be issued in registered form without coupons in minimum denominations
of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not exchange or register the transfer of
any Note for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest Payment
Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or the tender offer or exchange offer for, such
Notes), and any existing Default or Event of Default under, or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of certificated
Securities, to provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the Notes
(whether or not prohibited by the provisions of Article 10 of the Indenture);
(ii) default in
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payment when due of the principal of or premium, if any, on the Notes (whether
or not prohibited by the provisions of Article 10 of the Indenture); (iii)
failure by the Company to comply with the provisions of Article 5 of the
Indenture; (iv) failure by the Company for 30 consecutive days after notice from
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding to comply with the provisions of Sections 4.3, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, and 4.17 of the Indenture; (v) failure
by the Company for 60 consecutive days after notice from the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding to comply with any of its other agreements or covenants in, or
provisions of, this Note or in the Indenture; (vi) except as permitted by the
Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any reason to be in full force
and effect or a Subsidiary Guarantor or any Person acting on behalf of a
Subsidiary Guarantor, shall deny or disaffirm such Subsidiary Guarantor's
obligations under its Subsidiary Guarantee; (vii) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Restricted Subsidiary whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there is then existing a Payment Default or the
maturity of which has been so accelerated, aggregates $10 million or more;
provided, that if any such default is cured or waived or any such acceleration
rescinded, or such indebtedness is repaid, within a period of 10 days from the
continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default under
the Indenture and any consequential acceleration of the Notes shall be
automatically rescinded; (viii) a final non-appealable judgment or order or
final non-appealable judgments or orders are rendered against the Company or any
Restricted Subsidiary that remain unpaid or discharged for a period of 60 days
and that require the payment in money, either individually or in an aggregate
amount, that is more than $10 million; and (ix) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary. If any Event of Default (other than an Event of Default described in
clause (ix) above) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the
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foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, any Significant Subsidiary
or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest or premium on, or the principal of, the Notes. The Company
is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, within 5 Business days after
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. SUBORDINATION. The Notes are subordinated to Senior Debt
of the Company. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes may be paid. The Company agrees, and each Holder by
accepting a Note agrees, that the Indebtedness evidenced by the Notes,
including, but not limited to, the payment of principal of, premium, if any, and
interest on the Notes, and any other payment Obligation of the Company in
respect of the Notes is subordinated in right of payment, to the extent and in
the manner provided in the Indenture, to the prior payment in full in cash of
all Senior Debt of the Company (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and authorizes the Trustee
to give effect and appoints the Trustee as attorney-in-fact for such purpose.
14. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or otherwise.
The Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue or resign.
15. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company, as such,
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shall have any liability for any obligations of the Company under the Notes or
the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes, by accepting a Note, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Belden & Blake Corporation
5200 Stoneham Road
North Canton, Ohio 44726
Telecopier No.: (330) 497-5470
Attention: Joseph M. Vitale
[NOTE: THE FORM OF SUBSIDIARY GUARANTEE ATTACHED AS EXHIBIT C TO THE INDENTURE
IS TO BE ATTACHED TO THIS NOTE.]
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
---------------- -------------------
Signature Guarantee:*
----------------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is three years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the
Indenture); or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
- -------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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5 [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act of 1933), that has
furnished to the Trustee a signed letter
containing certain representations and agreements
(the form of which letter appears as Exhibit D to
the Indenture); or
7 [ ] transferred pursuant to another available
exemption from the registration requirements
of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; PROVIDED, HOWEVER, that if box (5), (6) or (7) is
checked, the Trustee or the Company may require, prior to registering any such
transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
-------------------------------
Signature
Signature Guarantee:*
- ------------------------------ -------------------------------
(Signature must be guaranteed) Signature
- --------------------------------------------------------------------------------
- --------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.13
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
--------------- ------------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:*
-----------------------
- --------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease Amount of increase this Global Note authorized officer
Date of in Principal Amount in Principal Amount following such of Trustee or Note
Exchange of this Global Note of this Global Note decrease or increase Custodian
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EXHIBIT B
(Form of Face of Exchange Note)
SERIES B NOTE
[Global Securities Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
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BELDEN & BLAKE CORPORATION
9 7/8% Senior Subordinated Notes due 2007
No. 1 $225,000,000
CUSIP Number: 077447 AA 8
BELDEN & BLAKE CORPORATION, an Ohio corporation, promises to
pay to Cede & Co., or registered assigns, the principal sum of Two Hundred
Twenty-Five Million Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: June 27, 1997
BELDEN & BLAKE CORPORATION
By
-----------------------------
Name:
Title:
By
-----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
LASALLE NATIONAL BANK,
as Trustee, certifies that this is
one of the Notes referred to in the
within-mentioned Indenture:
By
-----------------------------
Authorized Signatory
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Dated: June 27, 1997
(Back of Note)
9 7/8% Senior Subordinated Notes due 2007
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Belden & Blake Corporation, an Ohio corporation
(the "Company"), promises to pay interest on the principal amount of this Note
at the rate of 9 7/8% per annum, which interest shall be payable in cash
semiannually in arrears on each June 15 and December 15, or if any such day is
not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"); provided that the first Interest Payment Date shall be December
15, 1997. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
original issuance. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
2. METHOD OF PAYMENT. On each Interest Payment Date the
Company will pay interest to the Person who is the Holder of record of this Note
as of the close of business on the June 1 or December 1 immediately preceding
such Interest Payment Date, even if this Note is cancelled after such record
date and on or before such Interest Payment Date, except as provided in Section
2.12 of the Indenture with respect to defaulted interest. Principal, premium, if
any, and interest on this Note will be payable at the office or agency of the
Company maintained for such purpose within the City and State of New York or, in
the event the Notes do not remain in book-entry form, at the option of the
Company, payment of interest may be made by check mailed to the Holder of this
Note at its address set forth in the register of Holders of Notes; provided that
all payments with respect to the Global Notes and Definitive Notes having an
aggregate principal amount of $5.0 million or more the Holders of which have
given wire transfer instructions to the Company at least 10 Business Days prior
to the applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Such payment shall be in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts.
3. PAYING AGENT AND REGISTRAR. Initially, LaSalle National
Bank, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or
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any Subsidiary Guarantor or any other of the Company's Subsidiaries may act in
any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of June 27, 1997 ("Indenture") among the Company, the Subsidiary
Guarantors and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The
Notes are subject to all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are general unsecured
obligations of the Company equal in an aggregate principal amount to
$225,000,000 and will mature on June 15, 2007.
The Notes are general unsecured senior subordinated
obligations of the Company limited to $225,000,000 million aggregate principal
amount (subject to Section 2.6 of the Indenture). This Note is one of the
Initial Notes referred to in the Indenture. The Notes include the Initial Notes
and any Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture and the Registration Rights Agreement. The Initial Notes and the
Exchange Notes are treated as a single class of securities under the Indenture.
The Indenture imposes certain limitations on the incurrence of Indebtedness by
the Company and its Restricted Subsidiaries, the payment of dividends and other
distributions on the Capital Stock of the Company and its Restricted
Subsidiaries, the purchase or redemption of Capital Stock of the Company and
Capital Stock of such Restricted Subsidiaries, certain purchases or redemptions
of Subordinated Indebtedness, the sale or transfer of assets and Capital Stock
of Restricted Subsidiaries, the issuance or sale of Capital Stock of Restricted
Subsidiaries, the investments of the Company and its Subsidiaries and
transactions with Affiliates. In addition, the Indenture limits the ability of
the Company and its Restricted Subsidiaries to restrict distributions and
dividends from Restricted Subsidiaries.
5. OPTIONAL REDEMPTION.
(a) The Notes are not redeemable at the Company's option prior
to June 15, 2002. From and after June 15, 2002, the Notes will be subject to
redemption at the option of the Company, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date, if redeemed during the
twelve-month period beginning on June 15 of the years indicated below:
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YEAR PERCENTAGE
---- ----------
2002................................... 104.938%
2003................................... 103.292%
2004 .................................. 101.646%
2005 and thereafter ................... 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Paragraph 5, prior to June 15, 2000 the Company may, at its option, on any one
or more occasions, redeem up to 40% of the original aggregate principal amount
of Notes at a redemption price equal to 109.875% of the principal amount
thereof, plus accrued and unpaid interest, if any, thereon to the redemption
date, with the net proceeds of sales of public Equity Interests of the Company;
provided that at least 60% of the original aggregate principal amount of Notes
must remain outstanding immediately after the occurrence of such redemption; and
provided, further, that any such redemption shall occur within 60 days after the
date of the closing of the related sale of such Equity Interests.
(c) Notwithstanding the provisions of clause (a) of this
Paragraph 5, upon the occurrence of a Change of Control at any time on or prior
to June 15, 2002, the Company may, at its option, redeem in whole but not in
part, the Notes at a redemption price equal to 100% of the principal amount
thereof, plus the Applicable Premium as of, and accrued but unpaid interest, if
any, to, the date of redemption (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date) provided that such redemption shall be made no more than 90 days
after the occurrence of a Change of Control. The Company shall notify the
Trustee and, by mail, the Holders of the Notes of its decision to redeem the
Notes pursuant to this Paragraph 5(c) within 30 days of the occurrence of a
Change of Control.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall
not be required to make mandatory redemption or sinking fund payments with
respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) Upon the occurrence of a Change of Control, if the Company
does not redeem the Notes pursuant to paragraph 5(c), each Holder of Notes shall
have the right to require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's Notes pursuant to the
offer described below (the "Change of Control Offer") at an offer price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, if any, thereon to the date of purchase (the "Change of Control
Payment"). The right of the
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Holders of the Notes to require the Company to repurchase such Notes upon a
Change of Control may not be waived by the Trustee without the approval of the
Holders of the Notes required by Section 9.2 of the Indenture. Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes pursuant to the procedures required by the
Indenture and described in such notice. The Change of Control Payment shall be
made on a business day not less than 30 days nor more than 60 days after such
notice is mailed. The Company and each Subsidiary Guarantor will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent such laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a
Change of Control.
(b) If the Company or a Restricted Subsidiary consummates any
Asset Sales permitted by the Indenture, when the aggregate amount of Excess
Proceeds exceeds $15 million, the Company shall make an Asset Sale Offer to
purchase the maximum principal amount of Notes and any other Pari Passu
Indebtedness to which the Asset Sale Offer applies that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to, in the
case of the Notes, 100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of purchase or, in the case of any Pari Passu
Indebtedness, 100% of the principal amount thereof (or with respect to discount
Pari Passu Indebtedness, the accreted value thereof) on the date of purchase, in
each case, in accordance with the procedures set forth in Section 3.9 of the
Indenture or the agreements governing the Pari Passu Indebtedness, as
applicable. To the extent that the aggregate principal amount (or accreted
value, as the case may be) of Notes, and Pari Passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds, the Company
may use any remaining Excess Proceeds for general corporate purposes. If the sum
of (i) the aggregate principal amount of Notes surrendered by Holders thereof
and (ii) the aggregate principal amount or accreted value, as the case may be,
of Pari Passu Indebtedness surrendered by holders or lenders thereof exceeds the
amount of Excess Proceeds, the Trustee and the trustee or other lender
representative for the Pari Passu Indebtedness shall select the Notes and the
other Pari Passu Indebtedness to be purchased on a pro rata basis, based on the
aggregate principal amount (or accreted value, as applicable) thereof
surrendered in such Asset Sale Offer. Upon completion of such Asset Sale Offer,
the amount of Excess Proceeds shall be reset at zero.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the redemption date to each
Holder whose Notes are to be redeemed at its registered address. Notes in
denominations larger than
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$1,000 may be redeemed in part but only in integral multiples of $1,000, unless
all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on the aggregate principal amount of
the Notes called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes may be issued
initially in the form of one or more fully registered Global Notes. The Notes
may also be issued in registered form without coupons in minimum denominations
of $1,000 and integral multiples of $1,000. The transfer of Notes may be
registered and Notes may be exchanged as provided in the Indenture. The
Registrar and the Trustee may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
Holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company need not exchange or register the transfer of any Note or portion of
a Note selected for redemption, except for the unredeemed portion of any Note
being redeemed in part. Also, it need not exchange or register the transfer of
any Note for a period of 15 days before a selection of Notes to be redeemed or
during the period between a record date and the corresponding Interest Payment
Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of at least a majority in aggregate principal amount of
the Notes then outstanding (including, without limitation, consents obtained in
connection with a purchase of, or the tender offer or exchange offer for, such
Notes), and any existing Default or Event of Default under, or compliance with
any provision of the Indenture or the Notes may be waived with the consent of
the Holders of a majority in principal amount of the then outstanding Notes.
Without the consent of any Holder of a Note, the Indenture or the Notes may be
amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Securities in addition to or in place of certificated
Securities, to provide for the assumption of the Company's obligations to
Holders of the Notes in case of a merger or consolidation, to make any change
that would provide any additional rights or benefits to the Holders of the Notes
or that does not adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the Trust Indenture
Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i)
default for 30 consecutive days in the payment when due of interest on the Notes
(whether or not prohibited by the provisions of Article 10 of the Indenture);
(ii) default in
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payment when due of the principal of or premium, if any, on the Notes (whether
or not prohibited by the provisions of Article 10 of the Indenture); (iii)
failure by the Company to comply with the provisions of Article 5 of the
Indenture; (iv) failure by the Company for 30 consecutive days after notice from
the Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding to comply with the provisions of Sections 4.3, 4.7, 4.8,
4.9, 4.10, 4.11, 4.12, 4.13, 4.14, 4.16, and 4.17 of the Indenture; (v) failure
by the Company for 60 consecutive days after notice from the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then
outstanding to comply with any of its other agreements or covenants in, or
provisions of, this Note or in the Indenture; (vi) except as permitted by the
Indenture, any Subsidiary Guarantee shall be held in any judicial proceeding to
be unenforceable or invalid or shall cease for any reason to be in full force
and effect or a Subsidiary Guarantor or any Person acting on behalf of a
Subsidiary Guarantor, shall deny or disaffirm such Subsidiary Guarantor's
obligations under its Subsidiary Guarantee; (vii) default under any mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Restricted Subsidiary whether such Indebtedness or guarantee now exists, or is
created after the date of the Indenture, which default (a) is caused by a
failure to pay principal of or premium, if any, or interest on such Indebtedness
prior to the expiration of the grace period provided in such Indebtedness on the
date of such default (a "Payment Default") or (b) results in the acceleration of
such Indebtedness prior to its express maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there is then existing a Payment Default or the
maturity of which has been so accelerated, aggregates $10 million or more;
provided, that if any such default is cured or waived or any such acceleration
rescinded, or such indebtedness is repaid, within a period of 10 days from the
continuation of such default beyond the applicable grace period or the
occurrence of such acceleration, as the case may be, such Event of Default under
the Indenture and any consequential acceleration of the Notes shall be
automatically rescinded; (viii) a final non-appealable judgment or order or
final non-appealable judgments or orders are rendered against the Company or any
Restricted Subsidiary that remain unpaid or discharged for a period of 60 days
and that require the payment in money, either individually or in an aggregate
amount, that is more than $10 million; and (ix) certain events of bankruptcy or
insolvency with respect to the Company or any Significant Subsidiary or any
group of Subsidiaries that, taken together, would constitute a Significant
Subsidiary. If any Event of Default (other than an Event of Default described in
clause (ix) above) occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the
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foregoing, in the case of an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company, any Significant Subsidiary
or any group of Subsidiaries that, taken together, would constitute a
Significant Subsidiary, all outstanding Notes will become due and payable
without further action or notice. Holders of the Notes may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default or Event
of Default (except a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest or premium on, or the principal of, the Notes. The Company
is required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required, within 5 Business days after
becoming aware of any Default or Event of Default, to deliver to the Trustee a
statement specifying such Default or Event of Default.
13. SUBORDINATION. The Notes are subordinated to Senior Debt
of the Company. To the extent provided in the Indenture, Senior Debt must be
paid before the Notes may be paid. The Company agrees, and each Holder by
accepting a Note agrees, that the Indebtedness evidenced by the Notes,
including, but not limited to, the payment of principal of, premium, if any, and
interest on the Notes, and any other payment Obligation of the Company in
respect of the Notes is subordinated in right of payment, to the extent and in
the manner provided in the Indenture, to the prior payment in full in cash of
all Senior Debt of the Company (whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed) and authorizes the Trustee
to give effect and appoints the Trustee as attorney-in-fact for such purpose.
14. TRUSTEE DEALINGS WITH COMPANY. The Indenture contains
certain limitations on the rights of the Trustee, should it become a creditor of
the Company, to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or otherwise.
The Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the Commission for permission to continue or resign.
15. NO RECOURSE AGAINST OTHERS. No director, officer,
employee, incorporator or stockholder of the Company, as such,
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shall have any liability for any obligations of the Company under the Notes or
the Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder of Notes, by accepting a Note, waives
and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to
waive liabilities under the federal securities laws and it is the view of the
Commission that such a waiver is against public policy.
16. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
17. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act.
18. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
Belden & Blake Corporation
5200 Stoneham Road
North Canton, Ohio 44726
Telecopier No.: (330) 497-5470
Attention: Joseph M. Vitale
[NOTE: THE FORM OF SUBSIDIARY GUARANTEE ATTACHED AS EXHIBIT C TO THE INDENTURE
IS TO BE ATTACHED TO THIS NOTE.]
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Note on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date: Your Signature:
---------------- --------------------
Signature Guarantee:*
------------------------------
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is three years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
1 [ ] acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the
Indenture); or
2 [ ] transferred to the Company; or
3 [ ] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
4 [ ] transferred pursuant to an effective registration
statement under the Securities Act; or
- --------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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5 [ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
6 [ ] transferred to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act of 1933), that has
furnished to the Trustee a signed letter
containing certain representations and agreements
(the form of which letter appears as Exhibit D to
the Indenture); or
7 [ ] transferred pursuant to another available
exemption from the registration requirements
of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered holder thereof; PROVIDED, HOWEVER, that if box (5), (6) or (7) is
checked, the Trustee or the Company may require, prior to registering any such
transfer of the Notes, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
--------------------------------
Signature
Signature Guarantee:*
- ------------------------- --------------------------------
(Signature must be guaranteed) Signature
- --------------------------------------------------------------------------------
- -----------------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have
been made:
Principal Amount of Signature of
Amount of decrease Amount of increase this Global Note authorized officer
Date of in Principal Amount in Principal Amount following such of Trustee or Note
Exchange of this Global Note of this Global Note decrease or increase Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.10 or 4.13 of the Indenture, check the box below:
[ ] Section 4.10 [ ] Section 4.13
If you want to elect to have only part of the Note purchased
by the Company pursuant to Section 4.10 or Section 4.13 of the Indenture, state
the principal amount you elect to have purchased: $______________
Date: Your Signature:
---------------- ---------------------------------
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee:*
----------------------------
- --------
* Participant in a recognized Signature Guarantee Medallion Program (or
other signature guarantor acceptable to the Trustee).
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EXHIBIT C
FORM OF SUBSIDIARY GUARANTEE
Each of the Subsidiary Guarantors, if any, hereby, jointly and
severally and unconditionally guarantees to each Holder of a Note authenticated
and delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of and premium and interest on the Notes shall be promptly paid in full when
due, whether at maturity, by acceleration, redemption or otherwise, and interest
on the overdue principal of and interest on premium and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or thereunder shall be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that same shall be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason and the
Subsidiary Guarantors shall be jointly and severally obligated to pay the same
immediately.
The obligations of the Subsidiary Guarantors to the Holders of
Notes and to the Trustee pursuant to this Subsidiary Guarantee and the Indenture
(including the subordination provisions thereof) are expressly set forth in
Article 11 of the Indenture, and reference is hereby made to such Indenture for
the precise terms of this Subsidiary Guarantee. The terms of Article 11 of the
Indenture are incorporated herein by reference.
This is a continuing Subsidiary Guarantee and shall remain in
full force and effect and shall be binding upon each of the Subsidiary
Guarantors and its respective successors and assigns to the extent set forth in
the Indenture until full and final payment of all of the Company's Obligations
under the Notes and the Indenture and shall inure to the benefit of the Trustee
and the Holders of Notes and their successors and assigns and, in the event of
any transfer or assignment of rights by any Holder of Notes or the Trustee, the
rights and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all subject to the terms
and conditions hereof. Notwithstanding the foregoing, any Subsidiary Guarantor
that satisfies the provisions of Section 11.4 of the Indenture shall be released
of its obligations hereunder. This is a Subsidiary Guarantee of payment and not
a guarantee of collection.
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136
This Subsidiary Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the Note upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
For purposes hereof, each Subsidiary Guarantor's liability
will be that amount from time to time equal to the aggregate liability of such
Subsidiary Guarantor hereunder but shall be limited to the lesser of (i) the
aggregate amount of the obligations of the Company under the Notes and the
Indenture and (ii) the amount, if any, which would not have (A) rendered such
Subsidiary Guarantor "insolvent" (as such term is defined in the federal
Bankruptcy Law and in the Debtor and Creditor law of the State of New York) or
(B) left it with unreasonably small capital at the time its Subsidiary Guarantee
of the Notes was entered into, after giving effect to the incurrence of existing
Indebtedness immediately prior to such time; provided that, it shall be a
presumption in any lawsuit or other proceeding in which such Subsidiary
Guarantor is a party that the amount guaranteed pursuant to its Subsidiary
Guarantee is the amount set forth in clause (i) above unless any creditor, or
representative of creditors of such Subsidiary Guarantor, or debtor in
possession or trustee in bankruptcy of such Subsidiary Guarantor, otherwise
proves in such a lawsuit that the aggregate liability of such Subsidiary
Guarantor is limited to the amount set forth in clause (ii). The Indenture
provides that, in making any determination as to the solvency or sufficiency of
capital of a Subsidiary Guarantor in accordance with the previous sentence, the
right of such Subsidiary Guarantor to contribution from other Subsidiary
Guarantors and any other rights such Subsidiary Guarantor may have, contractual
or otherwise, shall be taken into account.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
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137
THE CANTON OIL & GAS COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
PEAKE ENERGY, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
WARD LAKE DRILLING, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
TARGET OILFIELD PIPE & SUPPLY COMPANY
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
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138
EXHIBIT D
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
Belden & Blake Corporation
c/o LaSalle National Bank
135 South LaSalle Street
Chicago, Illinois 60603
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the 9 7/8% Senior Subordinated Notes due 2007 (the "Notes")
of Belden & Blake Corporation (the "Company").
Upon transfer, the Notes would be registered in the name of
the new beneficial owner as follows:
Name:
--------------------------------------
Address:
-----------------------------------
Taxpayer ID Number:
------------------------
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined
in Rules 501(a)(1), (2), (3) and (7) under the Securities Act of 1933, as
amended (the "Securities Act")), purchasing for our own account or for the
account of such an institutional "accredited investor" at least $250,000
principal amount of the Notes, and we are acquiring the Notes not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Notes and invest in or purchase securities similar to the
Notes in the normal course of our business. We and any accounts for which we are
acting are each able to bear the economic risk of our or its investment.
2. We understand that the Notes have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Notes to offer, sell or
otherwise transfer such Notes prior to the date which is two years after the
later of the date of original issue and the last date on which the Company of
any affiliate of the Company was the owner
D-1
139
of such Notes (or any predecessor thereto) (the "Resale Restriction Termination
Date") only (a) to the Company, (b) pursuant to a registration statement which
has been declared effective under the Securities Act, (c) in a transaction
complying with the requirements of Rule 144A under the Securities Act to a
person we reasonably believe is a qualified institutional buyer under Rule 144A
(a "QIB") that purchases for its own account or for the account of a QIB and to
whom notice is given that the transfer is being made in reliance on Rule 144A,
(d) pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rules 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor", in each case in a
minimum principal amount of Notes of $250,000, or (f) pursuant to any other
available exemption from the registration requirements of the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of our property or the property of such investor account or accounts
be at all times within our or their control and in compliance with any
applicable state securities laws. The foregoing restrictions on resales will not
apply subsequent to the Resale Restriction Termination Date, if any resale or
other transfer of the Notes is proposed to be made pursuant to clause (e) above
prior to the Resale Restriction Termination Date, the transferor shall deliver a
letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the
transferee is an institutional "accredited investor" within the meaning of Rules
501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring
such Notes for investment purposes and not for distribution in violation of the
Securities Act. Each purchaser acknowledges that the Company and the Trustee
reserve the right prior to the offer, sale or other transfer prior to the Resale
Termination Date of the Notes pursuant to clause (d), (e) or (f) above to
require the delivery of an opinion of counsel, certifications or other
information satisfactory to the Company and the Trustee.
Transferee:
--------------------------------
By:
----------------------------------------
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