<PAGE>
As filed with the Securities and Exchange Commission on May 3, 1999.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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<S> <C> <C>
VINTAGE PETROLEUM, INC. Delaware 73-1182669
VINTAGE PETROLEUM CAPITAL TRUST I Delaware Applied For
(Exact name of registrant as specified in its charter) (State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
4200 One Williams Center
Tulsa, Oklahoma 74172
(918) 592-0101
(Address, including zip code, and telephone number,
including area code, of registrants' principal executive offices)
CHARLES C. STEPHENSON, JR.
4200 One Williams Center
Tulsa, Oklahoma 74172
(918) 592-0101
(Name, address, including zip code, and telephone number,
including area code, of agent for service for each registrant)
COPIES TO:
ROBERT J. MELGAARD, ESQ. PHILIP J. BOECKMAN, ESQ.
Conner & Winters, Cravath, Swaine & Moore
A Professional Corporation Worldwide Plaza
3700 First Place Tower 825 Eight Avenue
15 East Fifth Street New York, New York 10019-7475
Tulsa, Oklahoma 74103-4344
____________________
Approximate Date of Commencement of Proposed Sale to the Public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
____________________
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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(Continued on next page)
<PAGE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
=====================================================================================================================
Proposed Proposed maximum Amount of
Title of each class of Amount to be maximum aggregate registration
securities to be registered registered offering price offering price(1)(2) fee
per unit(1)
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities and Junior Subordinated
Debt Securities of Vintage Petroleum,
Inc. (the "Company") (4).................
- -----------------------------------------
Preferred Stock of the Company (5).......
- -----------------------------------------
Depositary Shares representing Preferred (3) (3) (3) (3)
Stock of the Company (6).................
- -----------------------------------------
Common Stock ($.005 par value)
of the Company (7) (8)...................
- -----------------------------------------
Preferred Securities of Vintage Petroleum
Capital Trust I (the "Trust") (9)........
- -----------------------------------------
Guarantee of Preferred Securities of the
Trust by the Company (10)................
- --------------------------------------------------------------------------------------------------------------------
TOTAL $400,000,000(11) 100% $400,000,000 $111,200
====================================================================================================================
</TABLE>
(1) The proposed maximum offering price per unit will be determined from time
to time by the Registrants in connection with the issuance by the
Registrants of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457 under
the Securities Act.
(3) Not applicable pursuant to General Instruction II.D. of Form S-3.
(4) Subject to note (11) below, there is being registered hereunder an
indeterminate principal amount of Debt Securities or Junior Subordinated
Debt Securities of the Company as may be sold from time to time. If any
Debt Securities or Junior Subordinated Debt Securities of the Company are
issued at an original issue discount, then the offering price shall be in
such greater principal amount as shall result in an aggregate initial
offering price not to exceed $400,000,000, less the dollar amount of any
securities previously issued hereunder.
(5) Subject to note (11) below, there is being registered hereunder an
indeterminate number of shares of Preferred Stock of the Company as may be
sold from time to time.
(6) Subject to note (11) below, there are being registered hereunder an
indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event that the
Company elects to offer to the public fractional interests in shares of
Preferred Stock of the Company registered hereunder, Depositary Receipts
will be distributed to those persons purchasing such fractional interests,
and the shares of Preferred Stock of the Company will be issued to the
Depositary under the Deposit Agreement.
(7) Each share of Common Stock is accompanied by a preferred share purchase
right pursuant to the Rights Agreement, dated March 16, 1999, with
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
(8) Subject to note (11) below, there is being registered hereunder an
indeterminate number of shares of Common Stock of the Company as may be
sold from time to time. There are also being registered hereunder an
indeterminate number of shares of Common Stock of the Company as shall be
issuable upon conversion or redemption of Preferred Stock, Debt Securities,
Junior Subordinated Debt Securities or Trust Preferred Securities
registered hereby.
(9) Subject to note (11) below, there is being registered hereunder an
indeterminate amount and number of the Trust Preferred Securities as may be
sold from time to time.
(10) No separate consideration will be received for the Guarantee of the Trust
Preferred Securities (the "Guarantee"). The Guarantee includes the rights
of holders of Trust Preferred Securities under the Guarantee and certain
back-up undertakings, as described in this Registration Statement.
(11) In no event will the aggregate offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$400,000,000. The securities registered hereunder may be sold separately or
as units with other securities registered hereunder.
____________________
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is declared effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MAY 3, 1999
PROSPECTUS
$400,000,000
____________
VINTAGE PETROLEUM, INC.
4200 One Williams Center
Tulsa, Oklahoma 74172
(918) 592-0101
Debt Securities
Junior Subordinated Debt Securities
Preferred Stock
Depositary Shares
Common Stock
____________
VINTAGE PETROLEUM CAPITAL TRUST I
4200 One Williams Center
Tulsa, Oklahoma 74172
(918) 592-0101
Preferred Securities
Guaranteed to the extent
set forth in this Prospectus by
Vintage Petroleum, Inc.
____________
We will provide specific terms of these securities in supplements to this
Prospectus. Before you invest, you should carefully read this Prospectus and
any supplements to this Prospectus.
____________
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
____________
This Prospectus may not be used to sell securities unless accompanied by a
supplement to this Prospectus.
This Prospectus is dated , 1999.
<PAGE>
You should rely only on the information incorporated by reference or
contained in this Prospectus or any Prospectus Supplement. We have not
authorized anyone to provide you with different information. We are not making
an offer of these securities in any state where the offer is not permitted. You
should not assume that the information contained in this Prospectus or any
Prospectus Supplement is accurate as of any date other than the date on the
front of those documents.
____________
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
About This Prospectus..................................................... 3
Where You Can Find More Information....................................... 3
The Company............................................................... 4
The Trust................................................................. 4
Ratio of Earnings to Fixed Charges........................................ 5
Use of Proceeds........................................................... 5
Description of Debt Securities............................................ 6
Description of Junior Subordinated Debt Securities........................ 20
Description of Preferred Stock............................................ 30
Description of Depositary Shares.......................................... 30
Description of Common Stock............................................... 33
Description of Preferred Securities....................................... 36
Description of Guarantee.................................................. 38
Plan of Distribution...................................................... 43
Legal Opinions............................................................ 44
Experts................................................................... 45
</TABLE>
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<PAGE>
ABOUT THIS PROSPECTUS
This Prospectus is part of a Registration Statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may,
from time to time, sell any combination of the securities described in this
Prospectus in one or more offerings up to a total dollar amount of $400,000,000.
This Prospectus provides you with a general description of the securities we may
offer. Each time we offer to sell securities, we will provide a Prospectus
Supplement that will contain specific information about the terms of that
offering. The Prospectus Supplement may also add, update, or change information
contained in this Prospectus. You should read both this Prospectus and any
Prospectus Supplement together with the additional information described under
the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference room at 450 Fifth
Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the public reference room. Our common stock is listed
and traded on the New York Stock Exchange under the symbol "VPI." Our reports,
proxy statements, and other information filed with the SEC can also be inspected
and copied at the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
This Prospectus, which constitutes a part of a Registration Statement on
Form S-3 filed by us with the SEC under the Securities Act of 1933, omits
certain of the information set forth in the Registration Statement.
Accordingly, you should refer to the Registration Statement and its exhibits for
further information with respect to us and the securities described in this
Prospectus. Copies of the Registration Statement and its exhibits are on file
at the offices of the SEC. Furthermore, statements contained in this Prospectus
concerning any document filed as an exhibit are not necessarily complete and, in
each instance, we refer you to the copy of such document filed as an exhibit to
the Registration Statement.
The SEC allows us to "incorporate by reference" the information we file
with them into this Prospectus, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be part of this Prospectus (except
for any information that is superseded by information included directly in this
Prospectus and any Prospectus Supplement), and information that we file later
with the SEC will automatically update and supersede the information in this
Prospectus. In addition, any filings we make with the SEC under Sections 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after the date of the
initial filing of the Registration Statement and prior to the effectiveness of
the Registration Statement will be incorporated by reference in this Prospectus.
We incorporate by reference the documents listed below and any future filings we
make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities:
. Our Annual Report on Form 10-K for the year ended December 31, 1998;
. Our Current Reports on Form 8-K dated February 24, 1999, and March 16,
1999;
. The description of our common stock contained in our Registration
Statement on Form 8-A, dated July 18, 1990, including any amendment or
report filed before or after the date of this Prospectus for the purpose
of updating the description; and
. The description of our preferred share purchase rights contained in our
Registration Statement on Form 8-A, dated March 22, 1999, including any
amendment or report filed before or after the date of this Prospectus
for the purpose of updating the description.
-3-
<PAGE>
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address:
William C. Barnes, Secretary
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
(918) 592-0101
THE COMPANY
Vintage Petroleum, Inc. (the "Company") is an independent oil and gas
company engaged in the development, exploitation, exploration, acquisition and
production of oil and natural gas. The Company is focused on acquiring
producing oil and gas properties containing the potential for increased value
through exploitation and development activities. The Company has been
successful at increasing the values of prior acquisitions by restoring or
increasing production of producing wells, adding production from new formations
in existing wells, instituting waterflood and other enhanced recovery
operations, reducing operating costs and drilling development wells. The
Company believes that its primary strengths are its ability to add reserves at
attractive prices and its low cost operating structure.
THE TRUST
Vintage Petroleum Capital Trust I (the "Trust") is a statutory business
trust formed by the Company, as sponsor of the Trust, under Delaware law. In
connection with an offering of the preferred securities of the Trust (the
"Preferred Securities"), the declaration of trust of the Trust will be amended
and restated in its entirety (as so amended and restated, the "Declaration")
substantially in the form filed as an exhibit to the Registration Statement and
will be qualified as an indenture under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
The Trust exists for the sole purposes of:
. issuing the Preferred Securities;
. investing the gross proceeds of the sale of the Preferred Securities in
a specific series of Junior Subordinated Debt Securities of the Company;
and
. engaging in only those other necessary or incidental activities.
The Company will acquire all of the common securities of the Trust (the
"Common Securities") which will have an aggregate liquidation amount equal to a
minimum of 3% of the total capital of the Trust. The Common Securities will
rank equally, and payments will be made on the Common Securities pro rata, with
the Preferred Securities, except that upon the occurrence and continuance of an
event of default under the Declaration, the rights of the holders of the Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Preferred Securities. The Company will pay all fees and expenses related to
the Trust and the offering of the Preferred Securities.
The Trust's business and affairs will be conducted by a number of trustees
(its "Trustees") as provided in the Declaration. The Company, as holder of all
of the Common Securities, will be entitled to appoint, remove or replace any of,
or increase or reduce the number of, the Trustees of the Trust. The duties and
obligations of the Trustees of the Trust will be governed by the Declaration.
-4-
<PAGE>
At least one of the Trustees of the Trust will be a person who is an
employee or officer of or who is affiliated with the Company (a "Regular
Trustee"). One Trustee of the Trust will be a financial institution that is not
affiliated with the Company, which shall act as property trustee and as
indenture trustee for the purposes of the Trust Indenture Act (the "Property
Trustee") pursuant to the terms of the Declaration as may be further described
in a Prospectus Supplement. In addition, unless the Property Trustee maintains
a principal place of business in the State of Delaware and otherwise meets the
requirements of applicable laws, one Trustee of the Trust will be a legal entity
having a principal place of business in, or an individual resident of, the State
of Delaware (the "Delaware Trustee").
The Property Trustee will be The Chase Manhattan Bank, and the Delaware
Trustee will be Chase Manhattan Bank Delaware. The office of the Delaware
Trustee in the State of Delaware is Chase Manhattan Bank Delaware, 1201 Market
Street, Wilmington, Delaware 19801.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company.
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Years Ended December 31,
---------------------------------------------------
1994/(1)/ 1995/(1)/ 1996/(1)/ 1997/(1)/ 1998
--------- --------- --------- --------- -------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges /(2) (3)/.. 2.9x 1.6x 2.4x 2.7x --/(4)/
</TABLE>
- ---------------
(1) Restated to reflect change in accounting method for the Company's oil and
gas properties effective January 1, 1998, from the full cost method to the
successful efforts method.
(2) For purposes of calculating the ratio of earnings to fixed charges,
earnings are defined as income of the Company and its subsidiaries before
income taxes and fixed charges. Fixed charges consist of interest expense,
including amortization of financing costs and any discount or premium
related to any indebtedness.
(3) The Company had no Preferred Stock outstanding and paid no dividends on
Preferred Stock during any of the periods presented. Therefore, the ratio
of earnings to combined fixed charges and preferred stock dividend
requirements is the same as the ratio of earnings to fixed charges.
(4) Earnings for the year were insufficient to cover fixed charges by
approximately $131.2 million.
USE OF PROCEEDS
The net proceeds from the sale of the Company's securities offered by this
Prospectus and the accompanying Prospectus Supplement will be used for general
corporate purposes, including:
. repayment of debt,
. working capital,
. capital expenditures,
. acquisitions, and
. other business opportunities.
The net proceeds may be invested temporarily until they are used for their
stated purpose. The Trust will use all proceeds received from the sale of
Preferred Securities to purchase Junior Subordinated Debt Securities of the
Company.
-5-
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Company's unsecured debt
securities, which may consist of senior notes and debentures and subordinated
notes and debentures (the "Debt Securities"), sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions may apply to
the Debt Securities being offered will be described in the Prospectus Supplement
relating to such Debt Securities. Accordingly, for a description of the terms of
a particular issue of Debt Securities, reference should be made to both the
Prospectus Supplement and to the following description.
The Debt Securities will be general obligations of the Company and may be
subordinated to "Senior Indebtedness" (as defined below) of the Company to the
extent set forth in the applicable Prospectus Supplement. See "Description of
Debt Securities--Subordination" below. Debt Securities will be issued under an
indenture (the "Indenture") to be entered into between the Company and The Chase
Manhattan Bank or such other trustee as may be named in a Prospectus Supplement
(the "Trustee"). A copy of the form of Indenture has been filed as an exhibit to
the Registration Statement. The following discussion of certain provisions of
the Indenture is a summary only and does not purport to be a complete
description of the terms and provisions of the Indenture. Accordingly, the
following discussion is qualified in its entirety by reference to the provisions
of the Indenture. Capitalized terms used in the following summary but not
defined have the meanings specified in the Indenture.
General
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued. The Debt Securities may be issued in one or more
series as may be authorized from time to time by the Company. The Indenture does
not limit the amount of other unsecured indebtedness or securities which may be
issued by the Company. Unless otherwise indicated in the applicable Prospectus
Supplement, the Debt Securities will not benefit from any covenant or other
provision that would afford holders of Debt Securities special protection in the
event of a highly leveraged transaction involving the Company. Reference is made
to the applicable Prospectus Supplement for the following terms of the Debt
Securities of the series with respect to which the Prospectus Supplement is
being delivered:
(a) the title of Debt Securities of the series;
(b) any limit on the aggregate principal amount of the Debt Securities
of the series that may be authenticated and delivered under the Indenture;
(c) the date or dates on which the principal and premium, if any, with
respect to the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable), or the method
of determination of the rate or rates, at which the Debt Securities of the
series will bear interest, the date or dates from which such interest shall
accrue, the interest payment dates on which such interest will be payable
or the method by which such date will be determined, the record dates for
the determination of holders of Debt Securities of the series to whom such
interest is payable, and the basis upon which interest will be calculated
if other than that of a 360-day year of twelve 30-day months;
-6-
<PAGE>
(e) the place or places of payment, if any, in addition to or instead
of the corporate trust office of the Trustee where the principal, premium,
if any, and interest with respect to Debt Securities of the series will be
payable;
(f) the price or prices at which, the period or periods within which,
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase, or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a holder of Debt Securities of the
series and the price or prices at which, the period or periods within
which, and the terms and conditions upon which Debt Securities of the
series will be redeemed, purchased, or repaid, in whole or in part,
pursuant to such obligations;
(h) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for securities of the Company or any
other issuer or obligor and the terms and conditions upon which such
conversion or exchange will be effected, including the initial conversion
or exchange price or rate, the conversion or exchange period and any other
provision in addition to or in lieu of those described herein;
(i) if other than denominations of $1,000 or any integral multiple of
$1,000, the denominations in which Debt Securities of the series will be
issuable;
(j) if the amount of principal, premium, if any, or interest with
respect to the Debt Securities of the series may be determined with
reference to an index or pursuant to a formula, the manner in which such
amounts will be determined;
(k) if the principal amount payable at the stated maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such stated maturity, the amount that will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount that will be due and payable upon any maturity other than
the stated maturity or that will be deemed to be outstanding as of any such
date (or, in such case, the manner in which such deemed principal amount is
to be determined), and if necessary, the manner of determining the
equivalent principal amount in United States currency;
(l) any changes or additions to the provisions of the Indenture
dealing with defeasance, including the addition of additional covenants
that may be subject to the Company's covenant defeasance option;
(m) if other than United States dollars, the coin or currency or
currencies or units of two or more currencies in which payment of the
principal, premium, if any, and interest with respect to Debt Securities of
the series shall be payable;
(n) if other than the principal amount of Debt Securities of the
series, the portion of the principal amount of Debt Securities of the
series which shall be payable upon declaration of acceleration or provable
in bankruptcy;
(o) the terms, if any, of the transfer, mortgage, pledge or assignment
as security for the Debt Securities of the series of any properties,
assets, moneys, proceeds, securities or other collateral, including whether
certain provisions of the Trust Indenture Act are applicable and any
corresponding changes to provisions of the Indenture as currently in
effect;
-7-
<PAGE>
(p) any addition to or change in the Events of Default with respect to
the Debt Securities of the series and any change in the right of the
Trustee or the holders to declare the principal of and interest on such
Debt Securities due and payable;
(q) whether the Debt Securities of the series will be issued in whole
or in part in global form, the terms and conditions, if any, upon which any
global security may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form and the depositary for any
such global security;
(r) any trustees, authenticating or paying agents, transfer agents or
registrars;
(s) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in the Indenture or in the
terms relating to permitted consolidations, mergers, or sales of assets,
including conditioning any merger, conveyance, transfer or lease permitted
by the Indenture upon the satisfaction of an Indebtedness coverage standard
by the Company and Successor Company;
(t) the terms, if any, of any guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and
any corresponding changes to the provisions of the Indenture as currently
in effect;
(u) the subordination, if any, of the Debt Securities of the series
and any changes or additions to the provisions of the Indenture relating to
subordination;
(v) if Debt Securities of the series do not bear interest, the dates
for certain required reports to the Trustee; and
(w) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the Indenture).
The Prospectus Supplement will also describe any material United States
federal income tax consequences or other special considerations applicable to
the series of Debt Securities to which such Prospectus Supplement relates,
including those applicable to:
(a) Debt Securities with respect to which payments of principal,
premium, or interest are determined with reference to an index or formula
(including changes in prices of particular securities, currencies, or
commodities);
(b) Debt Securities with respect to which principal, premium, or
interest is payable in a foreign or composite currency;
(c) Debt Securities that are issued at a discount below their stated
principal amount, bearing no interest or interest at a rate that at the
time of issuance is below market rates ("Original Issue Discount Debt
Securities"); and
(d) variable rate Debt Securities that are exchangeable for fixed rate
Debt Securities.
Payments of interest on Debt Securities shall be made at the corporate
trust office of the Trustee or at the option of the Company by check mailed to
the registered holders of Debt Securities or, if so provided in the applicable
Prospectus Supplement, at the option of a holder by wire transfer to an account
designated by such holder.
-8-
<PAGE>
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities may be transferred or exchanged at the office of the Trustee at which
its corporate trust business is principally administered in the United States or
at the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which its corporate agency business is
conducted, subject to the limitations provided in the Indenture, without the
payment of any service charge, other than any applicable tax or governmental
charge.
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more fully registered global securities (a "Global Security")
that will be deposited with a depositary or its nominee identified in the
Prospectus Supplement relating to such series. In such case, one or more Global
Securities will be issued in a denomination or aggregate denominations equal to
the portion of the aggregate principal amount of outstanding registered Debt
Securities of the series to be represented by such Global Security or
Securities. Unless and until it is exchanged in whole or in part for Debt
Securities in definitive registered form, a Global Security may not be
transferred except as a whole by the depositary for such Global Security to a
nominee of such depositary or by a nominee of such depositary to such depositary
or another nominee of such depositary or by such depositary or any such nominee
to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the Prospectus Supplement relating to such series. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such Global
Security to the accounts of persons that have accounts with such depositary
("participants"). The amounts to be credited shall be designated by any
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in a Global Security will be
limited to participants or persons that may hold interests through participants.
Ownership of beneficial interests in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records maintained
by the depositary for such Global Security (with respect to interests of
participants) or by participants or persons that hold through participants (with
respect to interests of persons other than participants). So long as the
depositary for a Global Security, or its nominee, is the registered owner of
such Global Security, such depositary or such nominee, as the case may be, will
be considered the sole owner or holder of the Debt Securities represented by
such Global Security for all purposes under the Indenture. Except as set forth
below, owners of beneficial interests in a Global Security will not be entitled
to have the Debt Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
such Debt Securities in definitive form and will not be considered the owners or
holders of such Debt Securities under the Indenture.
Principal, premium, if any, and interest payments on Debt Securities
represented by a Global Security registered in the name of a depositary or its
nominee will be made to such depositary or its nominee, as the case may be, as
the registered owner of such Global Security. None of the Company, the Trustee
or any paying agent for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in such Global Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
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The Company expects that the depositary for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium, or
interest, will immediately credit participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount of such Global Security as shown on the records of such depositary. The
Company also expects that payments by participants to owners of beneficial
interests in such Global Security held through such participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
name," and will be the responsibility of such participants.
If the depositary for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as depositary and a successor
depositary is not appointed by the Company within 90 days, the Company will
issue such Debt Securities in definitive form in exchange for such Global
Security. In addition, the Company may at any time and in its sole discretion
determine not to have any of the Debt Securities of a series represented by one
or more Global Securities and, in such event, will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Securities
representing such Debt Securities.
Subordination
Debt Securities may be subordinated ("Subordinated Debt Securities") in
right of payment, to the extent and in the manner set forth in the Indenture and
the applicable Prospectus Supplement, to the prior payment of all Indebtedness
of the Company that is designated as "Senior Indebtedness." Senior
Indebtedness, with respect to any series of Subordinated Debt Securities, will
consist of any Indebtedness of the Company that is designated in a resolution of
the Company's Board of Directors or the supplemental Indenture establishing such
series as Senior Indebtedness with respect to such series.
Upon any payment or distribution of assets of the Company to creditors or
upon a total or partial liquidation or dissolution of the Company or in a
bankruptcy, receivership, or similar proceeding relating to the Company or its
property, holders of Senior Indebtedness shall be entitled to receive payment in
full in cash of the Senior Indebtedness before holders of Subordinated Debt
Securities shall be entitled to receive any payment of principal, premium, or
interest with respect to the Subordinated Debt Securities, and until the Senior
Indebtedness is paid in full, any distribution to which holders of Subordinated
Debt Securities would otherwise be entitled shall be made to the holders of
Senior Indebtedness (except that such holders may receive shares of stock and
any debt securities that are subordinated to Senior Indebtedness to at least the
same extent as the Subordinated Debt Securities).
The Company may not make any payments of principal, premium, or interest
with respect to Subordinated Debt Securities, make any deposit for the purpose
of defeasance of such Subordinated Debt Securities, or repurchase, redeem, or
otherwise retire (except, in the case of Subordinated Debt Securities that
provide for a mandatory sinking fund, by the delivery of Subordinated Debt
Securities by the Company to the Trustee in satisfaction of the Company's
sinking fund obligation) any Subordinated Debt Securities if:
(a) any principal, premium, if any, or interest with respect to Senior
Indebtedness is not paid within any applicable grace period (including at
maturity), or
(b) any other default on Senior Indebtedness occurs and the maturity
of such Senior Indebtedness is accelerated in accordance with its terms,
unless, in either case,
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(i) the default has been cured or waived and such acceleration has
been rescinded,
(ii) such Senior Indebtedness has been paid in full in cash, or
(iii) the Company and the Trustee receive written notice approving
such payment from the representatives of each issue of "Designated Senior
Indebtedness" (which will include any specified issue of Senior
Indebtedness).
During the continuance of any default (other than a default described in clause
(a) or (b) above) with respect to any Senior Indebtedness pursuant to which the
maturity of such Senior Indebtedness may be accelerated immediately without
further notice (except such notice as may be required to effect such
acceleration) or the expiration of any applicable grace periods, the Company may
not pay the Subordinated Debt Securities for a period (the "Payment Blockage
Period") commencing on the receipt by the Company and the Trustee of written
notice of such default from the representative of any Designated Senior
Indebtedness specifying an election to effect a Payment Blockage Period (a
"Blockage Notice") and expiring 179 days thereafter. The Payment Blockage Period
may be terminated before its expiration by written notice to the Trustee and the
Company from the person who gave the Blockage Notice, by repayment in full in
cash of the Senior Indebtedness with respect to which the Blockage Notice was
given, or because the default giving rise to the Payment Blockage Period is no
longer continuing. Unless the holders of such Senior Indebtedness shall have
accelerated the maturity of such Senior Indebtedness, the Company may resume
payments on the Subordinated Debt Securities after the expiration of the Payment
Blockage Period. Not more than one Blockage Notice may be given in any period of
360 consecutive days unless the first Blockage Notice within such 360-day period
is given by or on behalf of holders of Designated Senior Indebtedness other than
the Bank Indebtedness, in which case the representative of the Bank Indebtedness
may give another Blockage Notice within such period. In no event, however, may
the total number of days during which any Payment Blockage Period or Periods is
in effect exceed 179 days in the aggregate during any period of 360 consecutive
days. After all Senior Indebtedness is paid in full and until the Subordinated
Debt Securities are paid in full, holders of the Subordinated Debt Securities
shall be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness.
As a result of the subordination provisions, in the event of the Company's
bankruptcy or insolvency, creditors of the Company who are holders of Senior
Indebtedness, as well as certain general creditors of the Company, may recover
ratably more than the holders of the Subordinated Debt Securities.
Events of Default and Remedies
The following events are defined in the Indenture as "Events of Default"
with respect to a series of Debt Securities:
(a) default in the payment of any installment of interest on any Debt
Securities of that series when due and payable (whether or not, in the case
of Subordinated Debt Securities, such payment shall be prohibited by reason
of the subordination provision described above) and continuance of such
default for a period of 30 days;
(b) default in the payment of principal or premium, if any, with
respect to any Debt Securities of that series when due and payable, whether
at maturity, upon redemption, by declaration, upon required repurchase, or
otherwise (whether or not, in the case of Subordinated Debt Securities,
such payment shall be prohibited by reason of the subordination provision
described above);
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(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series when due and payable;
(d) the Company fails to comply with the provisions of the Indenture
relating to consolidations, mergers and sales of assets;
(e) the Company fails to observe or perform any other of its covenants
or agreements in the Debt Securities of that series, in any resolution of
the Board of Directors of the Company authorizing the issuance of that
series of Debt Securities, in the Indenture with respect to such series, or
in any supplemental Indenture with respect to such series (other than a
covenant or agreement a default in the performance of which is otherwise
specifically dealt with) for a period of 60 days after the date on which
written notice specifying such failure and requiring the Company to remedy
the same has been given to the Company by the Trustee or to the Company and
the Trustee by the holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time outstanding;
(f) the Company or any Subsidiary does not pay its Indebtedness within
any applicable grace period after final maturity or such Indebtedness is
accelerated by the holders of such Indebtedness because of a default, the
total amount of such Indebtedness unpaid or accelerated exceeds $40 million
or the United States dollar equivalent of $40 million at the time, and such
default remains uncured or such acceleration is not rescinded for 10 days
after the date on which written notice specifying such failure and
requiring the Company to remedy such failure shall have been given to the
Company by the Trustee or to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the Debt Securities of that
series at the time outstanding;
(g) the Company shall
(1) voluntarily commence any proceeding or file any petition
seeking relief under the United States Bankruptcy Code or other
federal or state bankruptcy, insolvency, or similar law,
(2) consent to the institution of, or fail to controvert within
the time and in the manner prescribed by law, any such proceeding of
the filing of any such petition,
(3) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, or similar official for the Company
for a substantial part of its property,
(4) file an answer admitting the material allegations of a
petition filed against it in any such proceeding,
(5) make a general assignment for the benefit of creditors,
(6) admit in writing its inability or fail generally to pay its
debts as they become due,
(7) take corporate action for the purpose of effecting any of the
foregoing, or
(8) take any comparable action under any foreign laws relating to
insolvency;
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(h) the entry of an order or decree by a court having competent
jurisdiction for
(1) relief with respect to the Company or a substantial part of
its property under the United States Bankruptcy Code or any other
federal or state bankruptcy, insolvency, or similar law,
(2) the appointment of a receiver, trustee, custodian,
sequestrator, or similar official for the Company or for a substantial
part of its property, or
(3) the winding-up or liquidation of the Company;
and such order or decree shall continue unstayed and in effect for 60
consecutive days, or any similar relief is granted under any foreign laws
and the order or decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series.
An Event of Default with respect to one series of Debt Securities is not
necessarily an Event of Default for another series.
If an Event of Default occurs and is continuing with respect to any series
of Debt Securities, unless the principal and interest with respect to all the
Debt Securities of such series shall have already become due and payable, either
the Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities of such series then outstanding may declare the principal of
(or, if Original Issue Discount Debt Securities, such portion of the principal
amount as may be specified in such series) and interest on all the Debt
Securities of such series due and payable immediately.
If an Event of Default occurs and is continuing, the Trustee shall be
entitled and empowered to institute any action or proceeding for the collection
of the sums so due and unpaid or to enforce the performance of any provision of
the Debt Securities of the affected series or the Indenture, to prosecute any
such action or proceeding to judgment or final decree, and to enforce any such
judgment or final decree against the Company or any other obligor on the Debt
Securities of such series. In addition, if there shall be pending proceedings
for the bankruptcy or reorganization of the Company or any other obligor on the
Debt Securities, or if a receiver, trustee, or similar official shall have been
appointed for its property, the Trustee shall be entitled and empowered to file
and prove a claim for the whole amount of principal, premium and interest (or,
in the case of Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of such series) owing and
unpaid with respect to the Debt Securities. No holder of any Debt Securities of
any series shall have any right to institute any action or proceeding upon or
under or with respect to the Indenture, for the appointment of a receiver or
trustee, or for any other remedy, unless:
(a) such holder previously shall have given to the Trustee written
notice of an Event of Default with respect to Debt Securities of that
series and of the continuance of such Event of Default;
(b) the holders of not less than 25% in aggregate principal amount of
the outstanding Debt Securities of that series shall have made written
request to the Trustee to institute such action or proceeding with respect
to such Event of Default and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses, and
liabilities to be incurred in connection with such action or proceeding;
and
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(c) the Trustee, for 60 days after its receipt of such notice,
request, and offer of indemnity shall have failed to institute such action
or proceeding and no direction inconsistent with such written request shall
have been given to the Trustee pursuant to the provisions of the Indenture.
Prior to the acceleration of the maturity of the Debt Securities of any
series, the holders of a majority in aggregate principal amount of the Debt
Securities of that series at the time outstanding may, on behalf of the holders
of all Debt Securities of that series, waive any past default or Event of
Default and its consequences for that series, except:
(a) a default in the payment of the principal, premium, if any, or
interest with respect to such Debt Securities; or
(b) a default with respect to a provision of the Indenture that cannot
be amended without the consent of each holder so affected.
In case of any such waiver, such default shall cease to exist, any Event of
Default arising from such default shall be deemed to have been cured for all
purposes, and the Company, the Trustee and the holders of the Debt Securities of
that series shall be restored to their former positions and rights under the
Indenture.
The Trustee shall, within 90 days after the occurrence of a default known
to it with respect to a series of Debt Securities, give to the holders of the
Debt Securities of such series notice of all uncured defaults with respect to
such series known to it, unless such defaults shall have been cured or waived
before the giving of such notice; provided, however, that except in the case of
default in the payment of principal, premium, or interest with respect to the
Debt Securities of such series or in the making of any sinking fund payment with
respect to the Debt Securities of such series, the Trustee shall be protected in
withholding such notice if it in good faith determines that the withholding of
such notice is in the interest of the holders of such Debt Securities.
Modification of the Indenture
The Company and the Trustee may enter into supplemental Indentures without
the consent of the holders of Debt Securities issued under the Indenture for one
or more of the following purposes:
(a) to evidence the succession of another person to the Company
pursuant to the provisions of the Indenture relating to consolidations,
mergers, and sales of assets and the assumption by such successor of the
covenants, agreements, and obligations of the Company in the Indenture and
in the Debt Securities;
(b) to surrender any right or power conferred upon the Company by the
Indenture, to add to the covenants of the Company such further covenants,
restrictions, conditions, or provisions for the protection of the holders
of all or any series of Debt Securities as the Board of Directors of the
Company shall consider to be for the protection of the holders of such Debt
Securities, and to make the occurrence, or the occurrence and continuance
of a default in any of such additional covenants, restrictions, conditions,
or provisions, a default or an Event of Default under the Indenture
(provided, however, that with respect to any such additional covenant,
restriction, condition, or provision, such supplemental Indenture may
provide for a period of grace after default, which may be shorter or longer
than that allowed in the case of other defaults, may provide for an
immediate enforcement upon such default, may limit the remedies available
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to the Trustee upon such default, or may limit the right of holders of a
majority in aggregate principal amount of any or all series of Debt
Securities to waive such default);
(c) to cure any ambiguity or to correct or supplement any provision
contained in the Indenture, in any supplemental Indenture, or in any Debt
Securities that may be defective or inconsistent with any other provision
contained in the Indenture, in any supplemental Indenture, or in any Debt
Securities, to convey, transfer, assign, mortgage, or pledge any property
to or with the Trustee, or to make such other provisions in regard to
matters or questions arising under the Indenture as shall not adversely
affect the interests of any holders of Debt Securities of any series;
(d) to modify or amend the Indenture in such a manner as to permit the
qualification of the Indenture or any supplemental Indenture under the
Trust Indenture Act as then in effect;
(e) to add or change any of the provisions of the Indenture to change
or eliminate any restriction on the payment of principal or premium with
respect to Debt Securities so long as any such action does not adversely
affect the interest of the holders of Debt Securities in any material
respect or permit or facilitate the issuance of Debt Securities of any
series in uncertificated form;
(f) to comply with the provisions of the Indenture relating to
consolidations, mergers, and sales of assets;
(g) in the case of Subordinated Debt Securities, to make any change in
the provisions of the Indenture relating to subordination that would limit
or terminate the benefits available to any holder of Senior Indebtedness
under such provisions (but only if such holder of Senior Indebtedness
consents to such change);
(h) to add guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(i) to add to, change, or eliminate any of the provisions of the
Indenture with respect to one or more series of Debt Securities, so long as
any such addition, change, or elimination not otherwise permitted under the
Indenture shall
(1) neither apply to any Debt Securities of any series created
prior to the execution of such supplemental Indenture and entitled to
the benefit of such provision nor modify the rights of the holders of
any such Debt Security with respect to such provision, or
(2) become effective only when there is no such Debt Security
outstanding;
(j) to evidence and provide for the acceptance of appointment by a
successor or separate Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of the Indenture
as shall be necessary to provide for or facilitate the administration of
the Indenture by more than one Trustee; and
(k) to establish the form or terms of Debt Securities of any series,
as described under "Description of Debt Securities--General" above.
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With the consent of the holders of a majority in aggregate principal amount
of the outstanding Debt Securities of each series affected, the Company and the
Trustee may from time to time and at any time enter into a supplemental
Indenture for the purpose of adding any provisions to, changing in any manner,
or eliminating any of the provisions of the Indenture or of any supplemental
Indenture or modifying in any manner the rights of the holder of the Debt
Securities of such series. However, without the consent of the holders of each
Debt Security so affected, no such supplemental Indenture may:
(a) reduce the percentage in principal amount of Debt Securities of
any series whose holders must consent to an amendment;
(b) reduce the interest rate or extend the time for payment of
interest on any Debt Security;
(c) reduce the principal of or extend the stated maturity of any Debt
Security;
(d) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be
redeemed;
(e) make any Debt Security payable in a currency other than that
stated in the Debt Security;
(f) in the case of any Subordinated Debt Security, make any change in
the provisions of the Indenture relating to subordination that adversely
affects the rights of any holder under such provisions;
(g) release any security that may have been granted with respect to
the Debt Securities; or
(h) make any change in the provisions of the Indenture relating to
waivers of defaults or amendments that require unanimous consent.
Consolidation, Merger, and Sale of Assets
The Indenture provides that the Company may not consolidate with or merge
with or into any person, or convey, transfer, or lease all or substantially all
of its assets, unless the following conditions have been satisfied:
(a) Either
(i) the Company is the continuing person in the case of a
merger, or
(ii) the successor corporation is a corporation organized and
existing under the laws of the United States, any State, or the
District of Columbia and shall expressly assume all of the obligations
of the Company under the Debt Securities and the Indenture;
(b) Immediately after giving effect to the transaction (and treating
any Indebtedness that becomes an obligation of the successor corporation or
any Subsidiary of the Company as a result of the transaction as having been
incurred by the successor corporation or such Subsidiary at the time of
such transaction), no default or Event of Default would occur or be
continuing; and
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(c) The Company has delivered to the Trustee an officers' certificate
and an opinion of counsel, each stating that such consolidation, merger, or
transfer complies with the Indenture.
Certain Definitions
The following definitions, among others, are used in the Indenture. Many
of the definitions of terms used in the Indenture have been negotiated
specifically for the purposes of inclusion in the Indenture and may not be
consistent with the manner in which such terms are defined in other contexts.
Prospective purchasers of Debt Securities are encouraged to read each of the
following definitions carefully and to consider such definitions in the context
in which they are used in the Indenture.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP, and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP, and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Disqualified Stock" of a Person means Redeemable Stock of such Person as
to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the first anniversary of the Stated Maturity of the Debt Securities.
"GAAP" means generally accepted accounting principles in the United States
as in effect as of the date on which the Debt Securities of the applicable
series are issued, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP consistently applied.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(a) the principal of Indebtedness of such Person for borrowed money;
(b) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(c) all Capitalized Lease Obligations of such Person;
(d) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(e) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (a) through (d) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third business day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit;
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(f) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding, in each case, any accrued dividends);
(g) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser
of (A) the fair market value of such asset at such date of determination or
(B) the amount of such Indebtedness of such other Persons; and
(h) all Indebtedness of other Persons to the extent Guaranteed by such
Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Redeemable Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock, or
(iii) is redeemable at the option of the holder thereof, in whole or
in part.
"Subsidiary" of any Person means any corporation, association, partnership
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
(i) such Person,
(ii) such Person and one or more Subsidiaries of such Person, or
(iii) one or more Subsidiaries of such Person.
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Satisfaction and Discharge of the Indenture; Defeasance
The Indenture shall generally cease to be of any further effect with
respect to a series of Debt Securities if
(a) the Company has delivered to the Trustee for cancellation all Debt
Securities of such series (with certain limited exceptions), or
(b) all Debt Securities of such series not previously delivered to the
Trustee for cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be called for
redemption within one year, and the Company shall have deposited with the
Trustee as trust funds the entire amount in the currency in which the Debt
Securities are denominated sufficient to pay at maturity or upon redemption
all such Debt Securities;
and if, in either case, the Company shall also pay or cause to be paid all other
sums payable under the Indenture by the Company.
In addition, the Company shall have a "legal defeasance option" (pursuant
to which it may terminate, with respect to the Debt Securities of the particular
series, all of its obligations under such Debt Securities and the Indenture with
respect to such Debt Securities) and "covenant defeasance option" (pursuant to
which it may terminate, with respect to the Debt Securities of a particular
series, its obligations with respect to such Debt Securities under certain
specified covenants contained in the Indenture). If the Company exercises its
legal defeasance option with respect to a series of Debt Securities, payment of
such Debt Securities may not be accelerated because of an Event of Default. If
the Company exercises its covenant defeasance option with respect to a series of
Debt Securities, payment of such Debt Securities may not be accelerated because
of an Event of Default related to the specified covenants.
The Company may exercise its legal defeasance option or its covenant
defeasance option with respect to the Debt Securities of a series only if:
(a) the Company irrevocably deposits in trust with the Trustee cash or
U.S. Government Obligations (as defined in the Indenture) for the payment
of principal, premium, and interest with respect to such Debt Securities to
maturity or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payment of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium, if any,
and interest when due with respect to all the Debt Securities of such
series to maturity or redemption, as the case may be;
(c) 91 days pass after the deposit is made and during the 91-day
period no default described in clause (g) or (h) under "Description of Debt
Securities - Events of Default and Remedies" above with respect to the
Company occurs that is continuing at the end of such period;
(d) no default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
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(e) the deposit does not constitute a default under any other
agreement binding on the Company, and, in the case of Subordinated Debt
Securities, is not prohibited by the provisions of the Indenture relating
to subordination;
(f) the Company delivers to the Trustee an opinion of counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(g) the Company shall have delivered to the Trustee an opinion of
counsel addressing certain federal income tax matters relating to the
defeasance; and
(h) the Company delivers to the Trustee an officers' certificate and
an opinion of counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by the Indenture have been complied with.
The Trustee shall hold in trust cash or U.S. Government Obligations
deposited with it as described above and shall apply the deposited cash and the
proceeds from deposited U.S. Government Obligations to the payment of principal,
premium, if any, and interest with respect to the Debt Securities of the
defeased series. In the case of Subordinated Debt Securities, the money and U.S.
Government Obligations so held in trust will not be subject to the subordination
provisions of the Indenture.
The Trustee
The Company may maintain banking and other commercial relationships with
the Trustee and its affiliates in the ordinary course of business and the
Trustee may own Debt Securities. The Prospectus Supplement relating to a
particular issue of Debt Securities will provide additional information with
respect to any relationship the Company may have with the Trustee for such Debt
Securities.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The following description of the terms of the Company's junior subordinated
debt securities (the "Junior Subordinated Debt Securities") summarizes certain
general terms and provisions of the Junior Subordinated Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the Junior
Subordinated Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to the Junior
Subordinated Debt Securities being offered will be described in the applicable
Prospectus Supplement. Accordingly, for a description of the terms of a
particular issue of Junior Subordinated Debt Securities, reference must be made
to both the applicable Prospectus Supplement relating to the particular issue of
Junior Subordinated Debt Securities and to the following description.
Junior Subordinated Debt Securities may be issued from time to time in one
or more series under an indenture (the "Junior Subordinated Indenture") between
the Company and The Chase Manhattan Bank or such other trustee as may be named
in a Prospectus Supplement (the "Junior Subordinated Indenture Trustee"). A copy
of the form of Junior Subordinated Indenture has been filed as an exhibit to the
Registration Statement. The following discussion is a summary of the material
terms of the Junior Subordinated Indenture and those made part of the Junior
Subordinated Indenture by the Trust Indenture Act only and is not a complete
description of its terms and provisions. Accordingly, the following summary is
qualified in its entirety by reference to the Junior Subordinated Indenture and
the Trust Indenture Act. Capitalized terms used in the following summary but not
defined have the meanings specified in the Junior Subordinated Indenture.
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General
The Junior Subordinated Debt Securities will be unsecured, junior
subordinated obligations of the Company. The Junior Subordinated Indenture does
not limit the amount of additional indebtedness the Company or any of its
subsidiaries may incur. Because of the Company's holding company structure, the
Company's rights and the rights of its creditors, including the holders of
Junior Subordinated Debt Securities, to participate in the assets of any
subsidiary upon such subsidiary's liquidation or recapitalization will be
subject to the prior claims of the subsidiary's creditors, except to the extent
that the Company may itself be a creditor with recognized claims against the
subsidiary. The Junior Subordinated Indenture and the Junior Subordinated Debt
Securities do not contain any covenants or other provisions designed to protect
holders of Junior Subordinated Debt Securities in the event of a highly
leveraged transaction involving the Company or any of its subsidiaries.
The Junior Subordinated Indenture does not limit the aggregate principal
amount of indebtedness which may be issued under it. Junior Subordinated Debt
Securities may be issued under the Junior Subordinated Indenture from time to
time in one or more series pursuant to a supplement to the Junior Subordinated
Indenture.
In the event Junior Subordinated Debt Securities are issued to the Trust or
a Trustee of the Trust in connection with the issuance of Preferred Securities
by the Trust, such Junior Subordinated Debt Securities subsequently may be
distributed pro rata to the holders of such Preferred Securities in connection
with the dissolution of the Trust upon the occurrence of certain events
described in the applicable Prospectus Supplement. Only one series of Junior
Subordinated Debt Securities will be issued to the Trust or a Trustee of such
Trust in connection with the issuance of Preferred Securities by such Trust.
Reference is made to the applicable Prospectus Supplement for a description
of the following terms of the series of Junior Subordinated Debt Securities in
respect of which such Prospectus Supplement is being delivered (to the extent
such terms are applicable to the Junior Subordinated Debt Securities):
(a) the specific designation of such Junior Subordinated Debt
Securities, aggregate principal amount and purchase price;
(b) any limit on the aggregate principal amount of such Junior
Subordinated Debt Securities;
(c) the date or dates on which the principal of such Junior
Subordinated Debt Securities is payable and the right, if any, to extend
such date or dates;
(d) the rate or rates at which such Junior Subordinated Debt
Securities will bear interest or the method of calculating such rate or
rates, if any;
(e) the date or dates from which such interest shall accrue, the
interest payment dates on which such interest will be payable or the manner
of determination of such interest payment dates and the record dates for
the determination of holders to whom interest is payable on any such
interest payment dates;
(f) the right, if any, to extend the interest payment periods and the
duration of such extension;
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(g) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, such Junior Subordinated Debt
Securities may be redeemed, in whole or in part, at the option of the
Company;
(h) the obligation, if any, of the Company to redeem or purchase such
Junior Subordinated Debt Securities pursuant to any sinking fund or
analogous provisions or at the option of the holder of such Junior
Subordinated Debt Securities and the period or periods within which, the
price or prices at which, and the terms and conditions upon which, such
Junior Subordinated Debt Securities shall be redeemed or purchased, in
whole or part, pursuant to such obligation;
(i) whether and under what circumstances the Company will pay
additional amounts on the Junior Subordinated Debt Securities held by a
person who is not a U.S. person in respect of any tax, assessment or
governmental charge withheld or deducted and, if so, whether the Company
will have the option to redeem such Junior Subordinated Debt Securities
rather than pay such additional amounts;
(j) the form of such Junior Subordinated Debt Securities;
(k) if other than denominations of $50 or any integral multiple of
$50, the denominations in which such Junior Subordinated Debt Securities
shall be issuable;
(l) any and all other terms with respect to such series, including any
modification of or additions to the events of default or covenants provided
for with respect to the Junior Subordinated Debt Securities, and any terms
which may be required by or advisable under applicable laws or regulations
not inconsistent with the Junior Subordinated Indenture;
(m) the terms and conditions upon which the Junior Subordinated Debt
Securities may be convertible into or exchanged for Common Stock, Preferred
Stock, Preferred Securities, or indebtedness or other securities of any
kind of the Company; and
(n) whether such Junior Subordinated Debt Securities are issuable as a
global security, and in such case, the identity of the depositary.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issued in United States dollars in fully
registered form without coupons in denominations of $50 or integral multiples of
$50. No service charge will be made for any transfer or exchange of any Junior
Subordinated Debt Securities, but the Company may, except in certain specified
cases not involving any transfer, require payment of a sum sufficient to cover
any applicable tax or other governmental charge. Unless otherwise set forth in
the Prospectus Supplement, interest on outstanding Junior Subordinated Debt
Securities will be paid to holders of record on the date which is 15 days
immediately prior to the date such interest is to be paid.
Junior Subordinated Debt Securities may bear interest at a fixed rate or a
floating rate. Junior Subordinated Debt Securities bearing no interest or
interest at a rate that at the time of issuance is below the prevailing market
rate will be sold at a discount below their stated principal amount. Special
federal income tax considerations applicable to any such discounted Junior
Subordinated Debt Securities or to certain Junior Subordinated Debt Securities
issued at par which are treated as having been issued at a discount for federal
income tax purposes will be described in the applicable Prospectus Supplement.
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Global Securities
If any Junior Subordinated Debt Securities of a series are represented by
one or more Global Securities, the applicable Prospectus Supplement will
describe the circumstances, if any, under which beneficial owners of interests
in any such Global Security may exchange such interests for Junior Subordinated
Debt Securities of such series and of like tenor and principal amount in any
authorized form and denomination. Principal of, and any premium and interest on,
a Global Security will be payable in the manner described in the applicable
Prospectus Supplement.
The specific terms of the depositary arrangement with respect to any
portion of a series of Junior Subordinated Debt Securities to be represented by
a Global Security will be described in the applicable Prospectus Supplement.
Consolidation, Merger, Conveyance or Transfer
The Junior Subordinated Indenture provides that the Company may not
consolidate with or merge with or into any other person or convey, transfer or
lease all or substantially all of its assets to any person, unless the following
conditions have been satisfied:
(a) either
(i) the Company is the continuing person in the case of a
merger, or
(ii) the successor corporation is a corporation organized and
existing under the laws of the United States, any State, or the
District of Columbia and shall expressly assume all of the obligations
of the Company under the Junior Subordinated Debt Securities and the
Junior Subordinated Indenture;
(b) immediately after giving effect to the transaction, no default or
Event of Default would occur or be continuing; and
(c) the Company has delivered to the Trustee an officers' certificate
and an opinion of counsel, each stating that such consolidation, merger, or
transfer complies with the Junior Subordinated Indenture.
Events of Default; Waiver and Notice of Events of Default
As to any series of Junior Subordinated Debt Securities, an "Event of
Default" is defined in the Junior Subordinated Indenture as:
(a) default for 90 days in payment of any interest on the Junior
Subordinated Debt Securities of such series when due and payable (subject
to the deferral of any due date in the case of an Extension Period);
(b) default in payment of principal of or any premium on the Junior
Subordinated Debt Securities of such series when due and payable;
(c) default in payment of any sinking or purchase fund or analogous
obligation, if any, on the Junior Subordinated Debt Securities of such
series;
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(d) default by the Company in the performance, or breach, of any other
covenant or warranty contained in the Junior Subordinated Indenture for the
benefit of such series which shall not have been remedied for a period of
90 days after notice is given as specified in the Junior Subordinated
Indenture; and
(e) certain events of bankruptcy, insolvency and reorganization of the
Company.
A default under other indebtedness of the Company will not be a default
under the Junior Subordinated Indenture and a default under one series of Debt
Securities or Junior Subordinated Debt Securities will not necessarily be a
default under another series.
The Junior Subordinated Indenture provides that if an Event of Default
shall have occurred and be continuing with respect to any series, either the
Junior Subordinated Indenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Junior Subordinated Debt Securities of that
series then outstanding (each series acting as a separate class) may declare the
principal (or, in the case of Original Issue Discount Securities, the portion
thereof specified in the terms thereof) of all outstanding Junior Subordinated
Debt Securities of such series and the accrued interest, if any, to be due and
payable immediately. However, in certain circumstances the declarations may be
annulled and past defaults (except for defaults in the payment of principal of,
any premium on, or any interest on, such Junior Subordinated Debt Securities and
in compliance with certain covenants) may be waived by the holders of a majority
in aggregate principal amount of the Junior Subordinated Debt Securities of such
series then outstanding (subject to, in the case of any series of Junior
Subordinated Debt Securities held as trust assets of the Trust and with respect
to which a Security Exchange has not previously occurred, such consent of the
holders of the Preferred Securities and the Common Securities of the Trust as
may be required under the Declaration).
A "Security Exchange" means the distribution of the Junior Subordinated
Debt Securities held as trust assets of the Trust in exchange for the Preferred
Securities and the Common Securities of the Trust in dissolution of the Trust
pursuant to the Declaration.
Under the Junior Subordinated Indenture, the Junior Subordinated Indenture
Trustee must give to the holders of each series of Junior Subordinated Debt
Securities notice of all uncured defaults known to it with respect to such
series within 90 days after such a default occurs (the term "default" to include
the events specified above without notice or grace periods, except that in the
case of any default of the type described in clause (d) above, no such notice
shall be given until at least 90 days after the occurrence of such default);
provided that, except in the case of default in the payment of principal of, any
premium on, or any interest on, any of the Junior Subordinated Debt Securities,
or default in the payment of any sinking or purchase fund installment or
analogous obligations, the applicable Junior Subordinated Indenture Trustee
shall be protected in withholding such notice if it in good faith determines
that the withholding of such notice is in the interests of the holders of the
Junior Subordinated Debt Securities of such series.
No holder of any Junior Subordinated Debt Securities of any series may
institute any action under the Junior Subordinated Indenture unless:
(a) the holder gives the Junior Subordinated Indenture Trustee written
notice of a continuing Event of Default with respect to such series;
(b) the holders of not less than 25% in aggregate principal amount of
the Junior Subordinated Debt Securities of such series then outstanding
request the Junior Subordinated Indenture Trustee to institute proceedings
in respect of the Event of Default;
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(c) the holder or holders have offered the Junior Subordinated
Indenture Trustee such reasonable indemnity as the Junior Subordinated
Indenture Trustee may require;
(d) the Junior Subordinated Indenture Trustee has failed to institute
an action for 60 days thereafter; and
(e) no inconsistent direction has been given to the Junior
Subordinated Indenture Trustee during such 60-day period by the holders of
a majority in aggregate principal amount of Junior Subordinated Debt
Securities of such series then outstanding (subject to, in the case of any
series of Junior Subordinated Debt Securities held as trust assets of the
Trust and with respect to which a Security Exchange has not previously
occurred, such consent of the holders of the Preferred Securities and the
Common Securities of the Trust as may be required under the Declaration).
The holders of a majority in aggregate principal amount of the Junior
Subordinated Debt Securities of any series affected and then outstanding
(subject to, in the case of any series of Junior Subordinated Debt Securities
held as trust assets of the Trust and with respect to which a Security Exchange
has not previously occurred, such consent of the holders of the Preferred
Securities and the Common Securities of the Trust as may be required under the
Declaration) will have the right, subject to certain limitations, to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable Junior Subordinated Indenture Trustee or exercising any trust or
power conferred on such Junior Subordinated Indenture Trustee with respect to
such series of Junior Subordinated Debt Securities. The Junior Subordinated
Indenture provides that, in case an Event of Default shall occur and be
continuing, the Junior Subordinated Indenture Trustee, in exercising its rights
and powers under such Junior Subordinated Indenture, will be required to use the
degree of care of a prudent person in the conduct of such person's own affairs.
The Junior Subordinated Indenture further provides that the Junior Subordinated
Indenture Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
under the Junior Subordinated Indenture unless it has reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is reasonably assured to it.
The Company must furnish to the Junior Subordinated Indenture Trustee by
May 15 of each year a statement signed by one of certain officers of the Company
to the effect that a review of the activities of the Company during such year
and of its performance under the Junior Subordinated Indenture and the terms of
the Junior Subordinated Debt Securities has been made, and, to the best of the
knowledge of the signatories based on such review, the Company has complied with
all conditions and covenants of such Junior Subordinated Indenture through such
year or, if the Company is in default, specifying such default.
Modification of the Junior Subordinated Indenture
The Junior Subordinated Indenture provides that the Company and the Junior
Subordinated Indenture Trustee may, without the consent of any holders of Junior
Subordinated Debt Securities, enter into supplemental indentures for the
purposes, among other things, of adding to the Company's covenants, adding
additional Junior Subordinated Indenture Events of Default, establishing the
form or terms of any series of Junior Subordinated Debt Securities or curing
ambiguities or inconsistencies in the Junior Subordinated Indenture or making
other provisions.
With certain exceptions, the Junior Subordinated Indenture or the rights of
the holders of the Junior Subordinated Debt Securities may be modified by the
Company and the Junior Subordinated Indenture Trustee with the consent of the
holders of a majority in aggregate principal amount of the
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Junior Subordinated Debt Securities of each series affected by such modification
then outstanding (subject to, in the case of any series of Junior Subordinated
Debt Securities held as trust assets of the Trust and with respect to which a
Security Exchange has not previously occurred, such consent of the holders of
the Preferred Securities and the Common Securities of the Trust as may be
required under the Declaration). No such modification may be made without the
consent of the holder of each outstanding Junior Subordinated Debt Security so
affected (subject to, in the case of any series of Junior Subordinated Debt
Securities held as trust assets of the Trust and with respect to which a
Security Exchange has not previously occurred, such consent of the holders of
the Preferred Securities and the Common Securities of the Trust as may be
required under the Declaration) which would:
(a) change the maturity of any payment of principal of, or any premium
on, or any installment of interest on any Junior Subordinated Debt
Security, or reduce the principal amount of any Junior Subordinated Debt
Security or the interest or any premium on any Junior Subordinated Debt
Security, or change the method of computing the amount of principal of any
Junior Subordinated Debt Security or interest on any Junior Subordinated
Debt Security on any date or change any place of payment where, or the coin
or currency in which, any Junior Subordinated Debt Security or any premium
or interest on any Junior Subordinated Debt Security is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the maturity of any Junior Subordinated Debt Security (or, in the
case of redemption or repayment, on or after the redemption date or the
repayment date, as the case may be); or
(b) reduce the percentage in principal amount of the outstanding
Junior Subordinated Debt Securities of any series, the consent of whose
holders is required for any modification or for any waiver of compliance
with certain provisions of the Junior Subordinated Indenture or certain
defaults under the Junior Subordinated Indenture and their consequences.
Defeasance and Discharge
Under the terms of the Junior Subordinated Indenture, the Company will be
discharged from any and all obligations in respect of a series of the Junior
Subordinated Debt Securities (except in each case for certain obligations to
register the transfer or exchange of such Junior Subordinated Debt Securities,
replace stolen, lost or mutilated Junior Subordinated Debt Securities of such
series, maintain paying agencies and hold moneys for payment in trust) if:
(a) the Company irrevocably deposits with the Junior Subordinated
Indenture Trustee cash or U.S. Government Obligations or a combination
thereof, as trust funds in an amount certified to be sufficient to pay at
maturity (or upon redemption) the principal of, premium, if any, and
interest on all outstanding Junior Subordinated Debt Securities of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound;
(c) the Company delivers to the Junior Subordinated Indenture Trustee
an opinion of counsel to the effect that the holders of the Junior
Subordinated Debt Securities of such series will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and that such deposit, defeasance and discharge
will not otherwise alter holders' federal income tax treatment with respect
to payments on such Junior Subordinated Debt Securities of such series
(such opinion must be based on a ruling of the Internal Revenue Service or
a change in federal income tax law occurring after the date of the Junior
Subordinated Indenture, since such a result would not occur under current
tax law);
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(d) the Company has delivered to the Junior Subordinated Indenture
Trustee an officers' certificate and an opinion of counsel, each stating
that all conditions precedent provided for relating to such defeasance and
discharge have been complied with; and
(e) no event or condition shall exist that, pursuant to the applicable
subordination provisions, would prevent the Company from making payments of
principal of, premium, if any, and interest on the Junior Subordinated Debt
Securities at the date of the irrevocable deposit referred to above.
The Junior Subordinated Indenture Trustee will hold in trust cash or U.S.
Government Obligations deposited with it as described above and will apply the
deposited cash and the proceeds from deposited U.S. Government Obligations to
the payment of principal, premium, if any, and interest with respect to the
Junior Subordinated Debt Securities of the defeased series.
Certain Covenants of the Company Applicable to the Junior Subordinated Debt
Securities
If Junior Subordinated Debt Securities are issued to the Trust in
connection with the issuance of Preferred Securities by the Trust, the Company
covenants in the Junior Subordinated Indenture that, so long as the Preferred
Securities of the Trust remain outstanding, the Company will not declare or pay
any dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any Common Stock or Preferred Stock or make
any guarantee payments with respect thereto if at such time:
(a) the Company shall be in default with respect to any guaranteed
payments or distributions, or other payment obligations, under the related
Guarantee;
(b) there shall have occurred any Event of Default under the Junior
Subordinated Indenture with respect to such Junior Subordinated Debt
Securities; or
(c) in the event that Junior Subordinated Debt Securities are issued
to the Trust in connection with the issuance of Preferred Securities by the
Trust, the Company shall have given notice of its election to defer
payments of interest on such Junior Subordinated Debt Securities by
extending the interest payment period as provided in the terms of the
Junior Subordinated Debt Securities and such period, or any extension of
such period, is continuing.
The restrictions above will not apply to:
(a) dividends, redemptions, purchases, acquisitions, distributions or
payments made by the Company by way of issuance of shares of its capital
stock;
(b) any declaration of a dividend under a stockholder rights plan or
in connection with the implementation of a stockholder rights plan, the
issuance of capital stock of the Company under a stockholder rights plan or
the redemption, repurchase or exchange of any such right distributed
pursuant to a stockholder rights plan;
(c) payments of accrued dividends by the Company upon the redemption,
exchange or conversion of any Preferred Stock as may be outstanding from
time to time in accordance with the terms of such Preferred Stock;
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(d) cash payments made by the Company in lieu of delivering fractional
shares upon the redemption, exchange or conversion of any Preferred Stock
as may be outstanding from time to time in accordance with the terms of
such Preferred Stock;
(e) payments under the Guarantee; or
(f) purchases of Common Stock related to the issuance of Common Stock
or rights under any of the Company's benefit plans for its directors,
officers or employees, or related to the issuance of Common Stock or rights
under a dividend reinvestment and stock purchase plan.
In addition, if Junior Subordinated Debt Securities are issued to the Trust
in connection with the issuance of Preferred Securities by the Trust, for so
long as the Preferred Securities of the Trust remain outstanding, the Company
has agreed
(1) to remain the sole direct or indirect owner of all the outstanding
Common Securities issued by the Trust and not to cause or permit such
Common Securities to be transferred except to the extent permitted by the
Declaration of such Trust, provided that any permitted successor of the
Company under the Junior Subordinated Indenture may succeed to the
Company's ownership of such Common Securities,
(2) to comply fully with all its obligations and agreements under such
Declaration, and
(3) not to take any action which would cause the Trust to cease to be
treated as a grantor trust for federal income tax purposes, except in
connection with a distribution of Junior Subordinated Debt Securities.
Subordination
The Junior Subordinated Debt Securities will be subordinated and junior in
right of payment to certain other indebtedness of the Company to the extent set
forth in the applicable Prospectus Supplement.
The payment of the principal of, premium, if any, and interest on the
Junior Subordinated Debt Securities will be subordinated in right of payment to
the prior payment in full of all Senior Indebtedness of the Company. No payment
on account of principal of, premium, if any, or interest on the Junior
Subordinated Debt Securities and no acquisition of, or payment on account of any
sinking fund for, the Junior Subordinated Debt Securities may be made unless
full payment of amounts then due for principal, premium, if any, and interest
then due on all Senior Indebtedness by reason of the maturity of such Senior
Indebtedness (by lapse of time, acceleration or otherwise) has been made or duly
provided for in cash or in a manner satisfactory to the holders of such Senior
Indebtedness. In addition, the Junior Subordinated Indenture provides that if a
default has occurred giving the holders of such Senior Indebtedness the right to
accelerate the maturity of such Senior Indebtedness, or an event has occurred
which, with the giving of notice, or lapse of time, or both, would constitute
such an event of default, then unless and until such event shall have been cured
or waived or shall have ceased to exist, no payment on account of principal,
premium, if any, or interest on the Junior Subordinated Debt Securities and no
acquisition of, or payment on account of a sinking fund for, the Junior
Subordinated Debt Securities may be made. The Company shall give prompt written
notice to the Junior Subordinated Indenture Trustee of any default under any
Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness
may have been issued. The Junior Subordinated Indenture provisions described in
this paragraph, however, do not prevent the Company from making a sinking fund
payment with Junior
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Subordinated Debt Securities acquired prior to the maturity of Senior
Indebtedness or, in the case of default, prior to such default and notice
thereof. Upon any distribution of its assets in connection with any dissolution,
liquidation or reorganization of the Company, all Senior Indebtedness must be
paid in full before the holders of the Junior Subordinated Debt Securities are
entitled to any payments whatsoever. As a result of these subordination
provisions, in the event of the Company's insolvency, holders of the Junior
Subordinated Debt Securities may recover ratably less than senior creditors of
the Company.
For purposes of the description of the Junior Subordinated Debt Securities,
the term "Senior Indebtedness" means the principal of and premium, if any, and
interest on the following, whether outstanding on the date of execution of the
Junior Subordinated Indenture or thereafter incurred or created:
(a) indebtedness of the Company for money borrowed;
(b) guarantees by the Company of indebtedness of others;
(c) indebtedness evidenced by notes, debentures, bonds, guarantees or
other instruments of indebtedness for the payment of which the Company is
responsible or liable; or
(d) obligations of the Company under any lease or agreement to lease,
any other indebtedness, liability or obligation of the Company, or
renewals, extensions or refundings of any of the indebtedness referred to
in the preceding clauses (a), (b) and (c), unless, in the case of any
particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing such indebtedness, or
pursuant to which such indebtedness is outstanding, such indebtedness or
such renewal, extension or refunding of such indebtedness is not superior
in right of payment to the Junior Subordinated Debt Securities.
Notwithstanding the foregoing, Senior Indebtedness does not include any
obligation of the Company to a Subsidiary.
Concerning the Junior Subordinated Indenture Trustee
The Junior Subordinated Indenture Trustee for the Junior Subordinated Debt
Securities will be identified in the applicable Prospectus Supplement. In
certain instances, the Company or the holders of a majority of the then
outstanding principal amount of the Junior Subordinated Debt Securities issued
under the Junior Subordinated Indenture may remove the Junior Subordinated
Indenture Trustee and appoint a successor Junior Subordinated Indenture Trustee.
The Junior Subordinated Indenture Trustee may become the owner or pledgee of any
of the Junior Subordinated Debt Securities with the same rights, subject to
certain conflict of interest restrictions, it would have if it were not the
Junior Subordinated Indenture Trustee. The Junior Subordinated Indenture Trustee
and any successor trustee must be a corporation organized and doing business as
a commercial bank or trust company under the laws of the United States or of any
state, authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to examination
by federal or state authority. From time to time and subject to applicable law
relating to conflicts of interest, the Junior Subordinated Indenture Trustee may
also serve as trustee under other indentures relating to Debt Securities or
Junior Subordinated Debt Securities issued by the Company or affiliated
companies and it may maintain banking and commercial relationships with the
Company and affiliated companies. The Prospectus Supplement relating to a
particular series of Junior Subordinated Debt Securities will provide additional
information with respect to any relationship the Company may have with the
Junior Subordinated Indenture Trustee for such Junior Subordinated Debt
Securities.
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DESCRIPTION OF PREFERRED STOCK
The Company has 5,000,000 authorized shares of Preferred Stock, having a
par value of $.01 per share. As of the date of this Prospectus, no shares of
Preferred Stock were issued or outstanding; however, the Board of Directors of
the Company has reserved for issuance pursuant to the Company's Stockholder
Rights Plan described below 80,000 shares of Series A Junior Participating
Preferred Stock.
Preferred Stock may be issued from time to time in one or more series, and
the Board of Directors, without further approval of the stockholders, is
authorized to fix the dividend rates and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences, sinking fund and
any other rights, preferences, privileges and restrictions applicable to each
series of Preferred Stock. The particular terms of any series of Preferred
Stock will be described in the Prospectus Supplement relating to that series of
Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the deposit agreement and of the depositary shares and depositary
receipts is not complete. You should carefully review the Prospectus Supplement
and the form of deposit agreement and form of depositary receipts relating to
each series of the Preferred Stock.
General
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock which will be represented by depositary shares rather
than shares of Preferred Stock. The shares of any series of the Preferred Stock
underlying the depositary shares will be deposited under a separate deposit
agreement (the "Deposit Agreement") into which the Company will enter with a
bank or trust company having its principal office in the United States and a
combined capital and surplus of at least $50,000,000. Such bank will be
considered the depositary (the "Depositary"). The Prospectus Supplement
relating to a series of depositary shares will set forth the name and address of
the Depositary. Subject to the terms of the Deposit Agreement, each owner of a
depositary share will be entitled, in proportion to the applicable interest in
the number of shares of Preferred Stock underlying such depositary share, to all
the rights and preferences of the Preferred Stock underlying such depositary
share, including dividend, voting, redemption, conversion, exchange and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement, each of which will represent the applicable
interest in a number of shares of a particular series of the Preferred Stock
described in the applicable Prospectus Supplement. Depositary receipts will be
distributed to those persons purchasing depositary shares in accordance with the
terms of the offering described in the related Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
depositary shares is not entitled to receive the shares of Preferred Stock
underlying the depositary shares.
Dividends and Other Distributions
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of depositary shares representing such Preferred Stock in proportion to the
numbers of such depositary shares owned by such holders on the relevant record
date. The Depositary will distribute only such amount, however, as can be
distributed without attributing to
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any holder of depositary shares a fraction of one cent, and any balance not so
distributed will be added to and treated as part of the next sum received by the
Depositary for distribution.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of depositary shares
entitled to such property, as nearly as practicable, in proportion to the number
of depositary shares owned by such holder. However, if the Depositary
determines that it is not feasible to make such distribution, it may, with the
Company's approval, sell such property and distribute the net proceeds from such
sale to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights that the Company offers to holders of
Preferred Stock shall be made available to holders of depositary shares.
Conversion and Exchange
If any series of the Preferred Stock underlying the depositary shares is
subject to provisions relating to its conversion or exchange as set forth in the
applicable Prospectus Supplement, each record holder of depositary shares will
have the right or obligation to convert or exchange such depositary shares
pursuant to its terms.
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the depositary shares is
subject to redemption, the depositary shares will be redeemed from the proceeds
received by the Depositary resulting from the redemption, in whole or in part,
of such series of the Preferred Stock held by the Depositary. The redemption
price per depositary share will be equal to the applicable fraction of the
redemption price payable with respect to the shares of Preferred Stock
underlying the depositary shares. Whenever the Company redeems Preferred Stock
from the Depositary, the Depositary will redeem as of the same redemption date a
proportionate number of depositary shares representing the shares of Preferred
Stock that were redeemed. If less than all the depositary shares are to be
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
After the date fixed for redemption, the depositary shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the depositary shares will cease, except the right to receive the
redemption price payable upon such redemption and any money and other property
to which the holders of depositary shares were otherwise entitled at the time of
redemption upon surrender to the Depositary of the depositary receipts
evidencing such depositary shares.
Voting
Upon receipt of notice of any meeting or action in lieu of any meeting at
which the holders of any shares of Preferred Stock underlying the depositary
shares are entitled to vote, the Depositary will mail the information contained
in such notice to the record holders of the depositary shares relating to such
Preferred Stock. Each record holder of such depositary shares on the record
date, which will be the same date as the record date for the Preferred Stock,
will be entitled to instruct the Depositary as to the exercise of the voting
rights pertaining to the number of shares of Preferred Stock underlying such
holder's depositary shares. The Depositary will endeavor, insofar as
practicable, to vote the number of shares of Preferred Stock underlying such
depositary shares in accordance with such instructions, and the Company will
agree to take all action that the Depositary may deem necessary in order to
enable the Depositary to do so.
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Amendment and Termination of the Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the existing holders of depositary shares
will not be effective unless such amendment has been approved by the holders of
at least a majority of the depositary shares then outstanding.
The Deposit Agreement may be terminated by the Company or by the Depositary
only if
(i) all outstanding depositary shares have been redeemed, or
(ii) there has been a final distribution of the underlying shares of
the Preferred Stock in connection with the liquidation, dissolution or
winding up of the Company and the Preferred Stock has been distributed to
the holders of the depositary receipts.
Charges of Depositary
The Company will pay all transfer and other taxes and governmental charges
that arise solely from the existence of the depositary arrangements. It will
also pay charges of the Depositary in connection with the initial deposit of the
Preferred Stock and any exchange or redemption of the Preferred Stock. Holders
of depositary shares will pay all other transfer and other taxes and
governmental charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
Miscellaneous
The Company, or at its option, the Depositary, will forward to the holders
of depositary shares all of the reports and communications that it is required
to furnish to the holders of Preferred Stock.
Neither the Company nor the Depositary will be liable if either is
prevented or delayed by law or any circumstances beyond their respective control
in performing their respective obligations under the Deposit Agreement. The
obligations of the Company and the Depositary under the Deposit Agreement will
be limited to performance in good faith of their respective duties under the
Deposit Agreement and neither will be obligated to prosecute or defend any legal
proceeding in respect of any depositary share or Preferred Stock unless
satisfactory indemnity has been furnished. Both the Company and the Depositary
may rely upon written advice of counsel or accountants, or information provided
by persons presenting Preferred Stock for deposit, holders of depositary shares
or other persons believed to be competent and on documents believed to be
genuine.
Resignation and Removal of Depositary
The Depositary may resign at any time by delivering notice to the Company
of its election to do so, and the Company may at any time remove the Depositary.
Any such resignation or removal will take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. The successor
Depositary must be appointed by the Company within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
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DESCRIPTION OF COMMON STOCK
General
The Company has 80,000,000 authorized shares of Common Stock, having a par
value of $.005 per share. As of March 31, 1999, there were 53,107,066 shares of
Common Stock outstanding. All outstanding shares of Common Stock are fully paid
and nonassessable.
Holders of Common Stock are entitled to receive dividends, when, as and if
declared by the Board of Directors of the Company out of assets legally
available for their payment. In certain cases, the Company may not pay
dividends to holders of Common Stock until any dividend obligations of the
Company to the holders of any Preferred Stock then outstanding have been
satisfied. The Company is subject to certain restrictions on the payment of
dividends under the provisions of its credit arrangements.
In the event of the Company's voluntary or involuntary liquidation,
dissolution or winding up, the holders of Common Stock will be entitled to share
equally in the assets of the Company remaining after payment of all liabilities
and after holders of all series of outstanding Preferred Stock have received
their liquidation preferences in full.
The holders of Common Stock have no preemptive, subscription, conversion or
redemption rights, and are not subject to further calls or assessments of the
Company. There are no sinking fund provisions applicable to the Common Stock.
Holders of Common Stock are entitled to one vote per share for the election
of directors and on all other matters submitted to a vote of stockholders.
Holders of Common Stock have no right to cumulate their votes in the election of
directors.
Stockholder Rights Plan
Each share of Common Stock includes an associated preferred share purchase
right (the "Right") under the Company's Rights Agreement (the "Rights
Agreement") between the Company and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent. Until the Rights become exercisable, the Rights will be attached
to all certificates representing outstanding shares of Common Stock and will be
transferred with and only with these certificates. The Rights become
exercisable under certain circumstances specified in the Rights Agreement,
including the event any person or group becomes the beneficial owner of 15% or
more of the shares of Common Stock (an "Acquiring Person"), except in certain
exceptions. Except as set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase from the Company one one-thousandth
of a share of Series A Junior Participating Preferred Stock at a price of $60
per one one-thousandth of a share, subject to adjustment in certain
circumstances. Upon the occurrence of certain events specified in the Rights
Agreement, each holder of a Right (other than an Acquiring Person) will have the
right, upon exercise of the Right, to receive that number of shares of Common
Stock (or, in certain circumstances, other securities of the Company) having a
value of two times the exercise price of the Right. In the event that, at any
time following the first date of the public announcement that a person or group
becomes an Acquiring Person,
(a) the Corporation is acquired in a merger or other business
combination in which the holders of all the Common Stock immediately prior
to the transaction are not the holders of all of the surviving
corporation's voting power, or
(b) more than 50% of the Company's assets or earning power is sold or
transferred,
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then each holder of a Right (other than an Acquiring Person) will have the
right, upon exercise of the Right, to receive common shares of the acquiring
company having a value equal to two times the exercise price of the Right. The
Rights are redeemable in whole, but not in part, by action of the Board of
Directors of the Company at a price of $.01 per Right prior to the earlier to
occur of a person becoming an Acquiring Person or the expiration of the Rights.
The Rights expire on April 5, 2009. The Rights are designed to protect the
interests of the Company and its stockholders against coercive takeover tactics.
Certain Other Possible Anti-takeover Provisions
The Company's Restated Certificate of Incorporation (the "Company's
Charter") and Delaware law contain certain provisions that might be
characterized as anti-takeover provisions. These provisions may make it more
difficult to acquire control of the Company or remove management of the Company.
Classified Board of Directors; Removal of Directors by Stockholders; Advance
Notice Provisions for Stockholder Nominations.
The Company's Charter provides for the Board of Directors to be divided
into three classes of directors serving staggered three-year terms, with the
number of directors in each class to be as nearly equal as possible. As a
result, only one-third of the Company's directors are elected each year. Any
director of the Company may be removed from office, but only for cause and only
by the affirmative vote of a majority of the then outstanding shares of stock
entitled to vote on the matter. Any stockholder wishing to submit a nomination
to the Board of Directors must follow certain advance notice procedures outlined
in the Company's Charter.
No Stockholder Action by Written Consent.
The Company's Charter also provides that stockholder action may be taken
only at an annual or special meeting of stockholders, and may not be taken by
written consent of the stockholders.
Issuance of Preferred Stock.
The Company's Charter authorizes a class of undesignated Preferred Stock
consisting of 5,000,000 shares. Preferred Stock may be issued from time to time
in one or more series, and the Board of Directors, without further approval of
the stockholders, is authorized to fix the rights, preferences, privileges and
restrictions applicable to each series of Preferred Stock. The purpose of
authorizing the Board of Directors to determine such rights, preferences,
privileges and restrictions is to eliminate delays associated with a stockholder
vote on specific issuances. The issuance of Preferred Stock, while providing
flexibility in connection with possible acquisitions and other corporate
purposes, could, among other things, adversely affect the voting power of the
holders of Common Stock and, under certain circumstances, make it more difficult
for a third party to gain control of the Company.
"Fair Price Provisions."
The Company's Charter also contains certain "fair price provisions"
designed to provide safeguards for stockholders when an "interested stockholder"
(defined as a stockholder owning 10% or more of the Company's voting stock)
attempts to effect a "business combination" with the Company. The term "business
combination" includes:
. any merger or consolidation of the Company involving the interested
stockholder,
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. certain dispositions of our assets,
. any issuance of the Company's securities meeting certain threshold
amounts, to the interested stockholder,
. adoption of any plan of liquidation or dissolution of the Company
proposed by the interested stockholder, and
. any reclassification of the Company's securities having the effect of
increasing the proportionate share of ownership of the interested
stockholder.
In general, a business combination between the Company and the interested
stockholder must be approved by the affirmative vote of two-thirds of the
outstanding voting stock, excluding voting stock owned by such interested
stockholder, unless the transaction is approved by a majority of the members of
the Board of Directors who are not affiliated with the interested stockholder or
certain minimum price and form of consideration requirements are satisfied.
Delaware Business Combination Statute.
The Company is incorporated under the laws of the State of Delaware.
Section 203 of the Delaware General Corporation Law prevents an "interested
stockholder" (defined as a stockholder owning 15% or more of a corporation's
voting stock) from engaging in a business combination with the corporation for a
period of three years from the date the stockholder became an interested
stockholder unless:
. the corporation's board of directors had earlier approved either the
business combination or the transaction by which the stockholder
became an interested stockholder, or
. upon attaining that status, the interested stockholder had acquired at
least 85% of the corporation's voting stock (not counting shares owned
by persons who are directors and also officers), or
. the business combination is later approved by the board of directors
and authorized by a vote of two-thirds of the stockholders (not
including the shares held by the interested stockholder).
Since the Company has not amended its Charter or Restated By-laws to exclude the
application of Section 203, its provisions apply to the Company. Accordingly,
Section 203 may inhibit an interested stockholder's ability to acquire
additional shares of Common Stock or otherwise engage in a business combination
with the Company.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the Common Stock is ChaseMellon
Shareholder Services, L.L.C.
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DESCRIPTION OF PREFERRED SECURITIES
The Preferred Securities will be issued pursuant to the terms of the
Declaration. The following description of the terms of the Preferred Securities
summarizes certain general terms and provisions of the Preferred Securities to
which a Prospectus Supplement may relate. The Declaration will be qualified
under the Trust Indenture Act. The Chase Manhattan Bank or such other trustee
as may be named in a Prospectus Supplement (the "Property Trustee") will act as
indenture trustee for the Preferred Securities for purposes of compliance with
the provisions of the Trust Indenture Act. A copy of the form of Declaration
has been filed as an exhibit to the Registration Statement. The terms of the
Preferred Securities will include those stated in the Declaration and those made
part of the Declaration by the Trust Indenture Act. The following summary of
the Preferred Securities is qualified in its entirety by reference to the
Declaration and the Trust Indenture Act. Capitalized terms used in the
following summary but not defined have the meanings specified in the
Declaration.
General
The Preferred Securities represent undivided beneficial ownership interests
in the assets of the Trust and entitle the holders thereof to a preference in
certain circumstances with respect to distributions and amounts payable on
redemption or liquidation over the Common Securities of the Trust, as well as
such other preferred, deferred or other special rights or such restrictions as
shall be set forth in the Declaration or made part of the Declaration by the
Trust Indenture Act. Reference is made to the Prospectus Supplement relating to
the Preferred Securities for the specific terms, including:
(a) the specific designation of such Preferred Securities;
(b) the number of Preferred Securities issued by the Trust;
(c) the annual distribution rate (or method of calculation of such
rate) for the Preferred Securities, the date or dates upon which such
distributions shall be payable and the record date or dates for the payment
of such distributions;
(d) whether distributions on the Preferred Securities shall be
cumulative, and, in the case of Preferred Securities having such cumulative
distribution rights, the date or dates or method of determining the date or
dates from which distributions on the Preferred Securities shall be
cumulative;
(e) the amount or amounts which shall be paid out of the assets of
the Trust to the holders of the Preferred Securities upon voluntary or
involuntary liquidation, dissolution, winding-up or termination of the
Trust;
(f) the obligation or right, if any, of the Trust to purchase or
redeem the Preferred Securities and the price or prices at which, the
period or periods within which and the terms and conditions upon which the
Preferred Securities shall or may be purchased or redeemed, in whole or in
part, pursuant to such obligation or right;
(g) the voting rights, if any, of the Preferred Securities in
addition to those required by law, including the number of votes per
Preferred Security and any requirement for the approval by the holders of
Preferred Securities as a condition to specified actions or amendments to
the Declaration;
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(h) the terms and conditions upon which the Preferred Securities may
be convertible into or exchanged for Common Stock, Preferred Stock, Debt
Securities, Junior Subordinated Debt Securities, or indebtedness or other
securities of any kind of the Company; and
(i) any other relevant rights, preferences, privileges, limitations
or restrictions of the Preferred Securities consistent with the Declaration
or with applicable law.
All Preferred Securities offered by this Prospectus will be guaranteed by
the Company as and to the extent set forth below under "Description of
Guarantee."
In connection with the issuance of the Preferred Securities, the Trust will
issue one series of Common Securities. The Declaration authorizes the Regular
Trustees to issue on behalf of the Trust one series of Common Securities having
such terms including distributions, redemption, voting, liquidation rights or
such restrictions as will be set forth in the Declaration. The terms of the
Common Securities issued by the Trust will be substantially identical to the
terms of the Preferred Securities and the Common Securities will rank pari passu
and payments will be made on the Common Securities on a pro rata basis with the
Preferred Securities except that, if an Event of Default under the Declaration
occurs and is continuing, the rights of the holders of such Common Securities to
payment in respect of distributions and payments upon liquidation, redemption
and maturity will be subordinated to the rights of the holders of the Preferred
Securities. Except in certain limited circumstances, the Common Securities will
also carry the right to vote and to appoint, remove or replace any of the
Trustees of the Trust. All of the Common Securities will be directly or
indirectly owned by the Company.
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
distributions and other payments due on the Preferred Securities primarily
because
(i) the aggregate principal amount of Junior Subordinated Debt
Securities held as trust assets will be equal to the sum of the aggregate
stated liquidation amount of the Preferred Securities; and
(ii) the interest rate and interest and other payment dates on the
Junior Subordinated Debt Securities will match the distribution rate and
distribution and other payment dates for the Preferred Securities.
Events of Default and Remedies
An Event of Default under the Junior Subordinated Indenture (as defined
under "Description of Junior Subordinated Debt Securities--Events of Default;
Waiver and Notice of Events of Default") constitutes an "Event of Default" under
the Declaration.
If an Event of Default with respect to the Declaration occurs and is
continuing, then the holders of the Preferred Securities would rely on the
enforcement by the Property Trustee of its rights as a holder of the Junior
Subordinated Debt Securities deposited in the Trust against the Company. In
addition, the holders of a majority in liquidation amount of the Preferred
Securities will have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Property Trustee or to
direct the exercise of any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Junior Subordinated
Debt Securities. If the Property Trustee fails to enforce its rights under the
Junior Subordinated Debt Securities deposited in the Trust, any holder of the
Preferred Securities may, to the extent permitted by applicable law, after a
period of 30 days has elapsed from the holder's written
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request, institute a legal proceeding against the Company to enforce the
Property Trustee's rights under such Junior Subordinated Debt Securities without
first instituting any legal proceeding against the Property Trustee or any other
person or entity. Notwithstanding the foregoing, if an Event of Default with
respect to the Declaration occurs and is continuing and the event is
attributable to the failure of the Company to pay interest or principal on the
Junior Subordinated Debt Securities on the date the interest or principal is
otherwise payable (or in the case of redemption, on the redemption date), then a
holder of the Preferred Securities may also directly institute a proceeding
against the Company for enforcement of payment to such holder of the principal
of or interest on the Junior Subordinated Debt Securities having a principal
amount equal to the aggregate liquidation amount of such Preferred Securities
held by such holder on or after the respective due date specified in the Junior
Subordinated Debt Securities.
Miscellaneous
The Regular Trustees are authorized to take all action with respect to the
Trust, not inconsistent with applicable law or the Declaration, in order that
the Trust will not be deemed to be an "investment company" required to be
registered under the Investment Company Act of 1940 or characterized as other
than a grantor trust for federal income tax purposes so that the Junior
Subordinated Debt Securities will be treated as indebtedness of the Company for
federal income tax purposes.
Certain federal income tax considerations applicable to an investment in
Preferred Securities will be described in the applicable Prospectus Supplement.
Concerning the Property Trustee
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank will be the Property Trustee with respect to the Preferred
Securities. The Property Trustee maintains normal banking relationships with
the Company and its subsidiaries and may perform certain services for and
transact other business with the Company and its subsidiaries from time to time
in the ordinary course of business. The Prospectus Supplement relating to the
Preferred Securities will provide additional information with respect to any
relationship the Company may have with the Property Trustee.
DESCRIPTION OF GUARANTEE
Set forth below is a summary of information concerning the Guarantee that
will be executed and delivered by the Company for the benefit of the holders
from time to time of Preferred Securities of the Trust. The Guarantee will be
separately qualified under the Trust Indenture Act and will be held by The Chase
Manhattan Bank or such other trustee as may be named in a Prospectus Supplement,
acting in its capacity as indenture trustee with respect to the Guarantee (the
"Guarantee Trustee"), for the benefit of holders of the Preferred Securities of
the Trust. A copy of the form of Guarantee has been filed as an exhibit to the
Registration Statement. The terms of the Guarantee will be those set forth in
such Guarantee and those made part of such Guarantee by the Trust Indenture Act.
This description summarizes the material terms of the Guarantee and is qualified
in its entirety by reference to the form of Guarantee and the Trust Indenture
Act.
General
Pursuant to the Guarantee, the Company will irrevocably and unconditionally
agree, to the extent set forth in the Guarantee, to pay in full, to the holders
of the Preferred Securities issued by the Trust, the Guarantee Payments (as
defined below), to the extent not paid by the Trust, regardless of any defense,
right of set-off or counterclaim that the Trust may have or assert. The
following distributions and other
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payments with respect to Preferred Securities issued by the Trust to the extent
not made or paid by the Trust (the "Guarantee Payments"), will be subject to the
Guarantee (without duplication):
(i) any accrued and unpaid distributions on such Preferred
Securities, but only if and to the extent that in each case the Company has
made a payment to the Property Trustee of interest on the Junior
Subordinated Debt Securities,
(ii) the redemption price, including all accrued and unpaid
distributions to the date of redemption, with respect to any Preferred
Securities called for redemption by the Trust, but only if and to the
extent that in each case the Company has made a payment to the Property
Trustee of interest or principal on the Junior Subordinated Debt Securities
deposited in the Trust as trust assets, and
(iii) upon a voluntary or involuntary liquidation, dissolution,
winding-up or termination of the Trust (other than in connection with the
distribution of such Junior Subordinated Debt Securities to the holders of
such Preferred Securities or the redemption of all such Preferred
Securities upon the maturity or redemption of such Junior Subordinated Debt
Securities) the lesser of
(a) the aggregate of the liquidation amount and all accrued
and unpaid distributions on such Preferred Securities to the date of
payment, to the extent the Trust has funds available therefor, and
(b) the amount of assets of the Trust remaining available for
distribution to holders of such Preferred Securities upon liquidation
of the Trust.
The Company's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Company to the holders of the applicable
Preferred Securities or by causing the Trust to pay such amounts to such
holders. The Company will be subrogated to all rights of the holders of the
Preferred Securities against the Trust in respect of any Guarantee Payments
unless, at the time of such payment, any amounts are due and unpaid under the
Guarantee.
The Guarantee is a full and unconditional guarantee from the time of
issuance of the Preferred Securities, but the Guarantee covers distributions and
other payments on the Preferred Securities only if and to the extent that the
Company has made a payment to the Property Trustee of interest or principal on
the Junior Subordinated Debt Securities deposited in the Trust as trust assets.
If the Company does not make interest or principal payments on the Junior
Subordinated Debt Securities deposited in the Trust as trust assets, the
Property Trustee will not make distributions on the Preferred Securities of the
Trust and the Trust will not have funds available for such distributions.
The Company's obligations under the Declaration, the Guarantee, the Junior
Subordinated Debt Securities purchased by the Trust and the Junior Subordinated
Indenture in the aggregate will provide a full and unconditional guarantee on a
subordinated basis by the Company of payments due on the Preferred Securities
issued by the Trust.
Certain Covenants of the Company
In the Guarantee, the Company will covenant that, so long as any Preferred
Securities issued by the Trust remain outstanding, the Company will not declare
or pay any dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any Common Stock or Preferred Stock or make
any guarantee payment with respect thereto, if at such time:
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(a) the Company shall be in default with respect to its Guarantee
Payments or other payment obligations under the Guarantee;
(b) there shall have occurred any Event of Default under the
Declaration; or
(c) in the event that Junior Subordinated Debt Securities are issued
to the Trust in connection with the issuance of Preferred Securities by the
Trust, the Company shall have given notice of its election to defer
payments of interest on such Junior Subordinated Debt Securities by
extending the interest payment period as provided in the terms of the
Junior Subordinated Debt Securities and such period, or any extension of
such period, is continuing.
The foregoing restrictions shall not apply to:
(a) dividends, redemptions, purchases, acquisitions, distributions or
payments made by the Company by way of issuance of shares of its capital
stock;
(b) any declaration of a dividend under a stockholder rights plan or
in connection with the implementation of a stockholder rights plan, the
issuance of capital stock of the Company under a stockholder rights plan or
the redemption, repurchase or exchange of any such right distributed
pursuant to a stockholder rights plan;
(c) payments of accrued dividends by the Company upon the redemption,
exchange or conversion of any Preferred Stock as may be outstanding from
time to time in accordance with the terms of such Preferred Stock;
(d) cash payments made by the Company in lieu of delivering
fractional shares upon the redemption, exchange or conversion of any
Preferred Stock as may be outstanding from time to time in accordance with
the terms of such Preferred Stock;
(e) payments under the Guarantee; or
(f) purchases of Common Stock related to the issuance of Common Stock
or rights under any of the Company's benefit plans for its directors,
officers or employees, or related to the issuance of Common Stock or rights
under a dividend reinvestment and stock purchase plan.
In addition, so long as any Preferred Securities of the Trust remain
outstanding, the Company has agreed to
(1) remain the sole direct or indirect owner of all the outstanding
Common Securities issued by the Trust and not to cause or permit such
Common Securities to be transferred except to the extent permitted by the
Declaration, provided that any permitted successor of the Company under the
Junior Subordinated Indenture may succeed to the Company's ownership of
such Common Securities, and
(2) use reasonable efforts to cause the Trust to continue to be
treated as a grantor trust for federal income tax purposes, except in
connection with a distribution of Junior Subordinated Debt Securities.
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Amendments and Assignment
Except with respect to any changes that do not adversely affect the rights
of holders of the applicable Preferred Securities (in which case no consent will
be required), the Guarantee may be amended only with the prior approval of the
holders of not less than 66 2/3% in liquidation amount of the outstanding
Preferred Securities issued by the Trust. The manner of obtaining any such
approval of holders of the Preferred Securities will be set forth in an
accompanying Prospectus Supplement. All guarantees and agreements contained in
the Guarantee shall bind the successors, assignees, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Preferred Securities of the Trust then outstanding. Except in connection
with a consolidation, merger, conveyance, or transfer of assets involving the
Company that is permitted under the Junior Subordinated Indenture, the Company
may not assign its obligations under the Guarantee.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and effect as to
the Preferred Securities issued by the Trust
(a) upon full payment of the redemption price of all Preferred
Securities of the Trust, or
(b) upon distribution of the Junior Subordinated Debt Securities to
the holders of the Preferred Securities of the Trust in exchange for all
the Preferred Securities, or
(c) upon full payment of the amounts payable upon liquidation of the
Trust.
Notwithstanding the foregoing, the Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any holder of Preferred
Securities issued by the Trust must restore payment of any sums paid under such
Preferred Securities or such Guarantee.
Status of the Guarantee
The Company's obligations under the Guarantee to make the Guarantee
Payments will constitute an unsecured obligation of the Company and will rank
(i) subordinate and junior in right of payment to all other
indebtedness, liabilities and obligations of the Company and any
guarantees, endorsements or other contingent obligations of the Company in
respect of such indebtedness, liabilities or obligations, including the
Junior Subordinated Debt Securities, except those made pari passu or
subordinate by their terms, and
(ii) senior to all capital stock now or hereafter issued by the
Company and to any guarantee now or hereafter entered into by the Company
in respect of any of its capital stock.
The Company's obligations under the Guarantee will rank pari passu with any
guaranty now or hereafter entered into by the Company in respect of any
preferred securities of any business trust of which the Company holds the common
securities. Because of the Company's holding company structure, the Company's
obligations under the Guarantee are also effectively subordinated to all
existing and future liabilities, including trade payables, of the Company's
subsidiaries, except to the extent that the Company is a creditor of the
subsidiaries and is recognized as such. The Declaration provides that each
holder of
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<PAGE>
Preferred Securities issued by the Trust, by acceptance thereof, agrees to the
subordination provisions and other terms of the Guarantee.
The Guarantee will constitute a guarantee of payment and not of collection
(that is, the guaranteed party may institute a legal proceeding directly against
the Company to enforce its rights under the Guarantee without first instituting
a legal proceeding against any other person or entity). The Guarantee will be
deposited with the Guarantee Trustee, to be held for the benefit of the holders
of the Preferred Securities issued by the Trust. The Guarantee Trustee shall
enforce the Guarantee on behalf of the holders of the Preferred Securities. The
holders of not less than a majority in aggregate liquidation amount of the
Preferred Securities issued by the Trust have the right to direct the time,
method and place of conducting any proceeding for any remedy available in
respect of the Guarantee, including the giving of directions to the Guarantee
Trustee. If the Guarantee Trustee fails to enforce the Guarantee as above
provided, any holder of Preferred Securities issued by the Trust may institute a
legal proceeding directly against the Company to enforce its rights under the
Guarantee, without first instituting a legal proceeding against the Trust, or
any other person or entity. Notwithstanding the foregoing, if the Company has
failed to make a Guarantee Payment, a holder of Preferred Securities may
directly institute a proceeding against the Company for enforcement of such
holder's right to receive payment under the Guarantee. The Company waives any
right or remedy to require that any action be brought first against the Trust or
any other person or entity before proceeding directly against the Company.
Miscellaneous
The Company will be required to provide annually to the Guarantee Trustee a
statement as to the performance by the Company of certain of its obligations
under the Guarantee and as to any default in such performance. The Company is
required to file annually with the Guarantee Trustee an officer's certificate as
to the Company's compliance with all conditions to be complied with by it under
the Guarantee.
The Guarantee Trustee, prior to the occurrence of a default, undertakes to
perform only such duties as are specifically set forth in the Guarantee and,
after default with respect to a Guarantee, shall exercise the same degree of
care as a prudent individual would exercise under the circumstances in the
conduct of his or her own affairs. Subject to such provision, the Guarantee
Trustee is under no obligation to exercise any of the powers vested in it by the
Guarantee at the request of any holder of Preferred Securities unless it is
offered reasonable security and indemnity against the costs, expenses and
liabilities that might be incurred.
Concerning the Guarantee Trustee
Unless otherwise specified in the applicable Prospectus Supplement, The
Chase Manhattan Bank will be the Guarantee Trustee with respect to the
Guarantee. The Guarantee Trustee maintains normal banking relationships with
the Company and its subsidiaries and may perform certain services for and
transact other business with the Company and its subsidiaries from time to time
in the ordinary course of business. The Prospectus Supplement relating to the
Guarantee will provide additional information with respect to any relationship
the Company may have with the Guarantee Trustee.
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<PAGE>
PLAN OF DISTRIBUTION
The Company or the Trust may sell the securities offered by this Prospectus
(the "Securities"):
. through underwriters or dealers;
. through agents;
. directly to purchasers; or
. through a combination of any such methods of sale.
Any such underwriter, dealer or agent may be deemed to be an underwriter within
the meaning of the Securities Act of 1933. The Prospectus Supplement relating to
the Securities will set forth:
. their offering terms, including the name or names of any underwriters,
dealers or agents,
. the purchase price of the Securities and the proceeds to the Company
or the Trust from such sale,
. any underwriting discounts, commissions and other items constituting
compensation to underwriters, dealers or agents,
. any initial public offering price,
. any discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers, and
. any securities exchanges on which the Securities may be listed.
If underwriters or dealers are used in the sale, the Securities will be
acquired by the underwriters or dealers for their own account and may be resold
from time to time in one or more transactions,
. at a fixed price or prices which may be changed, or
. at market prices prevailing at the time of sale, or
. at prices related to such prevailing market prices, or
. at negotiated prices.
The Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more of such firms. Unless otherwise set forth in the Prospectus Supplement,
the obligations of underwriters or dealers to purchase the Securities will be
subject to certain conditions precedent and the underwriters or dealers will be
obligated to purchase all the Securities if any are purchased. Any public
offering price and any discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers may be changed from time to time.
Securities may be sold directly by the Company or the Trust or through
agents designated by the Company or the Trust from time to time. Any agent
involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company or the Trust to such agent will be set forth, in the Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company or the Trust will
authorize underwriters, dealers or agents to solicit offers from certain
specified institutions to purchase Securities from the Company or the Trust at
the public offering price set forth in the Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to any conditions set forth
in the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts. The
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<PAGE>
underwriters and other persons soliciting such contracts will have no
responsibility for the validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements entered
into with the Company or the Trust to indemnification by the Company or the
Trust against certain civil liabilities, including liabilities under the
Securities Act of 1933, or to contribution by the Company or the Trust to
payments which they may be required to make. The terms and conditions of such
indemnification will be described in an applicable Prospectus Supplement.
Underwriters, dealers and agents may be customers of, engage in transactions
with, or perform services for, the Company or the Trust in the ordinary course
of business.
Each class or series of Securities will be a new issue of securities with
no established trading market, other than the Common Stock, which is listed on
the New York Stock Exchange. The Company may elect to list any other class or
series of Securities on any exchange, but it is not obligated to do so. Any
underwriters to whom Securities are sold by the Company or the Trust for public
offering and sale may make a market in such Securities, but such underwriters
will not be obligated to do so and may discontinue any market making at any time
without notice. No assurance can be given as to the liquidity of the trading
market for any Securities.
Certain persons participating in any offering of Securities may engage in
transactions that stabilize, maintain or otherwise affect the price of the
Securities offered. In connection with any such offering, the underwriters or
agents, as the case may be, may purchase and sell Securities in the open market.
These transactions may include overallotment and stabilizing transactions and
purchases to cover syndicate short positions created in connection with the
offering. Stabilizing transactions consist of certain bids or purchases for the
purpose of preventing or retarding a decline in the market price of the
Securities; and syndicate short positions involve the sale by the underwriters
or agents, as the case may be, of a greater number of Securities than they are
required to purchase from the Company or the Trust, as the case may be, in the
offering. The underwriters may also impose a penalty bid, whereby selling
concessions allowed to syndicate members or other broker-dealers for the
Securities sold for their account may be reclaimed by the syndicate if such
Securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the Securities, which may be higher than the price that might
otherwise prevail in the open market, and if commenced, may be discontinued at
any time. These transactions may be effected on the New York Stock Exchange, in
the over-the-counter market or otherwise. For a description of these
activities, see "Plan of Distribution" or "Underwriting" in the applicable
Prospectus Supplement.
LEGAL OPINIONS
Conner & Winters, A Professional Corporation, Tulsa, Oklahoma, as the
Company's counsel, will issue an opinion for the Company regarding the validity
of the Debt Securities, the Junior Subordinated Debt Securities, the shares of
Preferred Stock, the Depositary Shares, and the shares of Common Stock offered
by this Prospectus. Richards, Layton & Finger, P.A., Wilmington, Delaware, as
special Delaware counsel for the Company and the Trust, will issue an opinion
regarding the validity of the Preferred Securities offered by this Prospectus.
Certain legal matters concerning the Securities will be passed upon for the
underwriters, dealers, or agents, if any, by Cravath, Swaine & Moore, New York,
New York.
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<PAGE>
EXPERTS
The audited financial statements of the Company incorporated by reference
in this Prospectus have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their report with respect to such audited financial
statements, and are incorporated by reference in reliance upon the authority of
such firm as experts in giving such report.
The estimated reserve evaluations and related calculations of Netherland,
Sewell & Associates, Inc. for the United States, Argentina and Ecuador
incorporated by reference in this Prospectus have been incorporated by reference
in reliance upon the authority of such firm as experts in petroleum engineering.
The estimated reserve evaluations and related calculations of DeGolyer and
MacNaughton for Bolivia incorporated by reference in this Prospectus have been
incorporated by reference in reliance upon the authority of such firm as experts
in petroleum engineering.
Any future audited financial statements and the reports with respect to
such audited financial statements of the Company's independent public
accountants also will be incorporated by reference in this Prospectus in
reliance upon the authority of that firm as experts in giving those reports to
the extent such firm has audited those financial statements and consented to the
use of their reports with respect to such audited financial statements.
-45-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
All amounts, which are payable by the Company, except the SEC registration
fee, are estimates.
<TABLE>
<S> <C>
SEC registration fee................................................................. $ 111,200
Printing and shipping expenses....................................................... 175,000
Legal fees and expenses.............................................................. 225,000
Accounting fees and expenses......................................................... 200,000
Trustee's, transfer agent's and depositary's fees and expenses....................... 15,000
Rating agency fees................................................................... 200,000
Miscellaneous........................................................................ 73,800
----------
Total........................................................................ $1,000,000
==========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Indemnification of Directors and Officers of the Company.
Section 145 of the General Corporation Law of the State of Delaware
provides generally that a corporation may indemnify any person who was or is a
party to or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
or investigative in nature, by reason of the fact that he is or was a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) and, in
a proceeding not by or in the right of the corporation, judgments, fines, and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such suit or proceeding, if he acted in good faith and in a
manner believed to be in or not opposed to the best interests of the corporation
and, with respect to any criminal action or proceeding, had no reason to believe
his conduct was unlawful. Delaware law further provides that a corporation may
not indemnify any person against expenses incurred in connection with an action
by or in the right of the corporation if such person shall have been adjudged to
be liable in the performance of his duty to the corporation unless and only to
the extent that the court in which such action or suit was brought shall
determine that, despite the adjudication of liability but in the view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for the expenses which such court shall deem proper. The Restated By-
laws of the Company provide that the Company shall indemnify an officer or
director against liability incurred by such person as authorized under the
General Corporation Law of the State of Delaware. In addition, the Company has
entered into specific agreements with the directors and officers of the Company
providing for indemnification of such persons under certain circumstances. The
Company's Restated Certificate of Incorporation also eliminates the liability of
the Company's directors for monetary damages for breach of their fiduciary duty
as directors. This provision, however, does not eliminate a director's
liability (a) for any breach of the director's duty of loyalty to the Company or
its stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) in respect of certain
unlawful dividend payments or stock redemptions or repurchases, or (d) for any
transaction from which a director derived an improper personal benefit.
II-1
<PAGE>
Indemnification of Trustees of Vintage Petroleum Capital Trust I (the "Trust").
The Declaration, as amended and restated in connection with any offer and
sale of Preferred Securities of the Trust, will provide that no Regular Trustee,
or affiliate of any Regular Trustee, or officer, director, shareholder, member,
partner, employee, representative or agent of any Regular Trustee or of any such
affiliate, or employee or agent of the Trust or its affiliates (each an
"Indemnified Person") shall be liable, responsible or accountable in damages or
otherwise to the Trust or any employee or agent of the Trust or its affiliates
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Trust and in a manner such Indemnified Person reasonably believed to be within
the scope of the authority conferred on such Indemnified Person by such
Declaration, as amended, or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence or willful misconduct with respect to such act or
omission.
The Declaration will also provide that to the fullest extent permitted by
applicable law, the Company shall indemnify and hold harmless each Indemnified
Person from and against any loss, damage or claim incurred by such Indemnified
Person by reason of any act or omission performed or omitted by such Indemnified
Person in good faith on behalf of the Trust and in a manner such Indemnified
Person reasonably believed to be within the scope of authority conferred on such
Indemnified Person by the Declaration, except that no Indemnified Person shall
be entitled to be indemnified in respect of any loss, damage or claim incurred
by such Indemnified Person by reason of gross negligence or willful misconduct
with respect to such act or omission.
The Declaration will further provide that, to the fullest extent permitted
by applicable law, expenses (including legal fees) incurred by an Indemnified
Person in defending any claim, demand, action, suit or proceeding shall, from
time to time, be advanced by the Company prior to the final disposition of such
claim, demand, action, suit or proceeding upon receipt of an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified for the
underlying cause of action as authorized by such Declaration.
Item 16. Exhibits.
The following is a list of all exhibits filed as a part of this
Registration Statement on Form S-3, including those incorporated by reference
herein.
1.1* Form of Underwriting Agreement (Preferred/Common Stock).
1.2* Form of Underwriting Agreement (Debt).
1.3* Form of Underwriting Agreement (Preferred Securities).
3.1** Restated Certificate of Incorporation, as amended, of the
Company.
3.2*** Restated By-laws of the Company.
3.3* Certificate of Designation of Series A Junior Participating
Preferred Stock of the Company.
4.1* Form of Indenture (Debt Securities).
4.2* Form of Junior Subordinated Indenture.
4.3* Declaration of Trust of Vintage Petroleum Capital Trust I.
4.4* Form of Amended and Restated Declaration of Trust of Vintage
Petroleum Capital Trust I.
II-2
<PAGE>
4.5* Form of Preferred Securities Certificate (included in form of
Amended and Restated Declaration of Trust filed as Exhibit
4.4).
4.6* Form of Deposit Agreement.
4.7* Form of Depositary Receipt for Depositary Shares (included in
form of Deposit Agreement filed as Exhibit 4.6).
4.8* Form of Guarantee of Vintage Petroleum Capital Trust I.
4.9**** Rights Agreement, dated March 16, 1999, between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
5.1* Opinion of Conner & Winters, A Professional Corporation,
counsel for the Company.
5.2* Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel for the Company and the Trust.
12.* Computation of Ratio of Earnings to Fixed Charges.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Conner & Winters, A Professional Corporation
(included in Exhibit 5.1).
23.3* Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.2).
23.4* Consent of Netherland, Sewell & Associates, Inc.
23.5* Consent of DeGoyler and MacNaughton.
24.1* Power of Attorney (included on the signature page to this
Registration Statement).
25.1* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Indenture (Debt Securities).
25.2* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Junior Subordinated Indenture.
25.3* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Declaration of Trust of the Trust.
25.4* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Preferred Securities Guarantee of the
Company for the benefit of the holders of Preferred Securities
of the Trust.
- --------------------
* Filed herewith.
** Previously filed as an exhibit to the Company's Form 10-Q for the quarter
ended June 30, 1997, and incorporated by reference herein.
*** Previously filed as an exhibit to the Company's Registration Statement on
Form S-1 (No. 33-35289) and incorporated by reference herein.
**** Previously filed as an exhibit to the Company's Registration Statement on
Form 8-A, dated March 22, 1999, and incorporated by reference herein.
Item 17. Undertakings.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
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<PAGE>
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in this effective Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Company pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of each of the Registrants pursuant to the provisions referred to in
Item 15 of this Registration Statement, or otherwise, each Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by such Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
(i) The undersigned Registrants each undertake that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as a
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
* * *
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on the 30th day of April,
1999.
VINTAGE PETROLEUM, INC.
By: /s/ C. C. Stephenson, Jr.
----------------------------
C. C. Stephenson, Jr.
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints C. C. Stephenson, Jr., S. Craig George
and William C. Barnes, and each of them, his true and lawful attorneys-in-fact
and agents with full power of substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or his or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Name Title Date
- ---- ----- ----
/s/ C. C. Stephenson, Jr. Director and Chairman of the Board April 30, 1999
- --------------------------
C. C. Stephenson, Jr.
/s/ Jo Bob Hille Director and Vice Chairman of the April 30, 1999
- -------------------------- Board
Jo Bob Hille
/s/ S. Craig George Director, President and Chief April 30, 1999
- -------------------------- Executive Officer (Principal
S. Craig George Executive Officer)
/s/ William C. Barnes Director, Executive Vice President, April 30, 1999
- -------------------------- Chief Financial Officer and
William C. Barnes Treasurer
(Principal Financial Officer)
II-6
<PAGE>
/s/ Bryan H. Lawrence Director April 30, 1999
- --------------------------
Bryan H. Lawrence
Director April , 1999
- --------------------------
John T. McNabb, II
/s/ Michael F. Meimerstorf Vice President and Controller April 30, 1999
- -------------------------- (Principal Accounting Officer)
Michael F. Meimerstorf
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, the undersigned
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tulsa, State of Oklahoma, on the 30th day of April,
1999.
VINTAGE PETROLEUM CAPITAL TRUST I
By: VINTAGE PETROLEUM, INC.,
as Sponsor
By: /s/ C. C. Stephenson, Jr.
----------------------------
C. C. Stephenson, Jr.
Chairman of the Board
II-7
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
- ------ -------------------------------------------------------
1.1* Form of Underwriting Agreement (Preferred/Common Stock).
1.2* Form of Underwriting Agreement (Debt).
1.3* Form of Underwriting Agreement (Preferred Securities).
3.1** Restated Certificate of Incorporation, as amended, of the Company.
3.2*** Restated By-laws of the Company.
3.3* Certificate of Designation of Series A Junior Participating
Preferred Stock of the Company.
4.1* Form of Indenture (Debt Securities).
4.2* Form of Junior Subordinated Indenture.
4.3* Declaration of Trust of Vintage Petroleum Capital Trust I.
4.4* Form of Amended and Restated Declaration of Trust of Vintage
Petroleum Capital Trust I.
4.5* Form of Preferred Securities Certificate (included in form of
Amended and Restated Declaration of Trust filed as Exhibit 4.4).
4.6* Form of Deposit Agreement.
4.7* Form of Depositary Receipt for Depositary Shares (included in form
of Deposit Agreement filed as Exhibit 4.6).
4.8* Form of Guarantee of Vintage Petroleum Capital Trust I.
4.9**** Rights Agreement, dated March 16, 1999, between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent.
5.1* Opinion of Conner & Winters, A Professional Corporation, counsel
for the Company.
5.2* Opinion of Richards, Layton & Finger, P.A., special Delaware
counsel for the Company and the Trust.
12.* Computation of Ratio of Earnings to Fixed Charges.
23.1* Consent of Arthur Andersen LLP.
23.2* Consent of Conner & Winters, A Professional Corporation (included
in Exhibit 5.1).
23.3* Consent of Richards, Layton & Finger, P.A. (included in Exhibit
5.2).
23.4* Consent of Netherland, Sewell & Associates, Inc.
23.5* Consent of DeGoyler and MacNaughton.
24.1* Power of Attorney (included on the signature page to this
Registration Statement).
25.1* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Indenture (Debt Securities).
25.2* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Junior Subordinated Indenture.
25.3* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Declaration of Trust of the Trust.
25.4* Statement on Form T-1 of the eligibility of The Chase Manhattan
Bank as trustee under the Preferred Securities Guarantee of the
Company for the benefit of the holders of Preferred Securities of
the Trust.
- --------------------
* Filed herewith.
** Previously filed as an exhibit to the Company's Form 10-Q for the quarter
ended June 30, 1997, and incorporated by reference herein.
*** Previously filed as an exhibit to the Company's Registration Statement on
Form S-1 (No. 33-35289) and incorporated by reference herein.
**** Previously filed as an exhibit to the Company's Registration Statement on
Form 8-A, dated March 22, 1999, and incorporated by reference herein.
<PAGE>
EXHIBIT 1.1
Vintage Petroleum, Inc.
[Preferred] [Common] Stock
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Vintage Petroleum, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the number of shares of [ ] Stock, [$
par value] ("[ ] Stock"), of the Company set forth in Schedule I hereto
(said shares to be issued and sold by the Company being hereinafter called the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to the number of additional shares of
Common Stock set forth in Schedule II hereto to cover over-allotments (the
"Option Securities"; the Option Securities, together with the Underwritten
Securities, being hereinafter called the "Securities"). To the extent there are
no additional Underwriters listed on Schedule I hereto other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
<PAGE>
2
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or
more amendments thereto, including a Preliminary Final Prospectus, each of
which has previously been furnished to you. The Company will next file with
the Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), the Company has included in such registration
statement, as amended at the Effective Date, all information (other than
Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of final
prospectus supplement shall contain all Rule 430A Information, together
with all other such required information, and, except to the extent the
Representatives shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the Execution
Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution Time, will be included
or made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the respective
rules thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that the Company makes no representations or warranties as to the
-------
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the
<PAGE>
3
Securities shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
------------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the Proceeds to Company per share
set forth in Schedule I hereto, the amount of the Underwritten Securities set
forth opposite such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
the number of Option Securities set forth in Schedule I hereto at the same
purchase price per share as the Underwriters shall pay for the Underwritten
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Underwritten Securities by the Underwriters. Said option may be
exercised in whole or in part at any time (but not more than once) on or before
the 30th day after the date of the Final Prospectus upon written or telegraphic
notice by the Representatives to the Company setting forth the number of shares
of the Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The number of shares of the Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
number of shares of the Option Securities to be purchased by the several
Underwriters as such Underwriter is purchasing of the Underwritten Securities,
subject to such adjustments as you in your absolute discretion shall make to
eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to
<PAGE>
4
purchase the Option Securities shall be conditioned upon receipt of,
supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to
Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Repre sentatives (1) when
the Registration Statement, if not effective at the Execution Time, shall
have become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration Statement, or
any Rule 462(b) Registration Statement, or for any supple ment to the
Final Prospectus or for any additional information, (5) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (6) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the institution or threatening of any
proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect
<PAGE>
5
such compliance and (3) supply any supplemented Final Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of [name
of the lead Representative], offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of [ ] Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of [ ] Stock; or publicly
announce an intention to effect any such transaction, until the Business
Day set forth on Schedule I hereto, provided, however, that the Company may
-------- -------
(i) register the Securities and sell the shares of the Securities offered
in the offering, (ii) register, issue and sell Common Stock pursuant to any
employee or director stock option plan, stock ownership plan or dividend
reinvestment plan of the Company and (iii) the Company may issue Common
Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
<PAGE>
6
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and any
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time, the Closing Date and any settlement date pursuant to Section
3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Conner & Winters,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and Vintage Marketing, Inc., Vintage
Pipeline, Inc., Vintage Gas Inc., Vintage Petroleum International,
Inc., Vintage Petroleum Ecuador, Inc., Vintage Petroleum Argentina,
Inc., Vintage Oil Argentina, Inc. and Vintage Petroleum Boliviana,
Ltd. (individually a "Subsidiary" and collectively the "Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the
<PAGE>
7
outstanding shares of Common Stock have been duly and validly
authorized and issued and are fully paid and nonassessable; the
Securities have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; [the Securities have
been duly authorized for listing, subject to official notice of
issuance [and evidence of satisfactory distribution], on the New York
Stock Exchange;] the certificates for the Securities are in valid and
sufficient form; and the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Securities;
(iv) to the knowledge of such counsel, (1) there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and (2) there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; [and the statements included or incorporated by reference in
the Final Prospectus under the heading[s] "Tax Matters", " " and " "
[if the Final Prospectus contains a discussion of specific legal or
regulatory matters or proceedings, add references to appropriate
sections of the Final Prospectus, with such knowledge qualifiers of
such counsel as may be necessary,] fairly summarize the matters
therein described];
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final
Prospectus, except as otherwise specifically dealt with in their
opinion, and relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company, no
facts have come to the attention of such counsel that have caused such
counsel to believe that on the Effective Date or at the Execution Time
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the
Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were
<PAGE>
8
made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated in this
Agreement and in the Final Prospectus and such other approvals
(specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will conflict with, result in a
breach or violation of, or constitute a default under any law or the
charter or by-laws of the Company or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administra tive agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(x) except as described in that certain Registration Rights
Agreement dated as of November 4, 1998, between the Company and Elf
Aquitaine, no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Oklahoma, the corporate laws of the State of Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore , counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any
<PAGE>
9
supplement thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the Vice
Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by appropriate governmental authorities; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the most recent unaudited financial statements
included or incorporated by reference in the Registration Statement and
Final Prospectus, if any, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
<PAGE>
10
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, as indicated in their
report, if any, incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and certain committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date
of the most recent audited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the Company
or decreases in the stockholders' equity of the Company as
compared with the amounts shown on the date of the most recent
financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in
the Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
(other than any capsule information), audited or unaudited,
included or incorporated by reference in the Registration
Statement and the Final Prospectus, to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year, in revenues or income before provision for
income taxes or in total or per share amounts of net income of
the
<PAGE>
11
Company and its subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the letter
shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the unaudited amounts of any capsule information
included or incorporated by reference in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, the information included or
incorporated by reference in Items 1, 2, 6, and 7 of the Company's
most recent Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final Prospectus, the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, and any information of an accounting or financial nature
appearing in a Current Report on Form 8-K incorporated by reference in
the Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 (other
than any change or decrease specified in such letter or letters delivered
at the Execution Time) or (ii) any change, or any
<PAGE>
12
development involving a prospective change, in or affecting the condition
(financial or otherwise), earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any supplement thereto)
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the sole judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
(g) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Repre sentatives may reasonably request.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) The Securities shall have been listed and admitted and authorized
for trading on the Stock Exchange specified in Schedule I hereto, and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(j) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each person listed in Schedule I hereto.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives . Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, New York 10019, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of one Underwriters'
counsel)
<PAGE>
13
approved by the Representatives that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein and (ii) with respect to any
untrue statement or omission of a material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person or such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where (x) the Company had previously furnished copies of the Final Prospectus to
the Representatives, (y) the untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity, and will reimburse the Company and such other persons for any legal
or other expenses reasonably incurred by the Company or such other persons in
connection with investigating or defending any such action or claim as such
expenses are incurred. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements described in Schedule I hereto in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
<PAGE>
14
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- --------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party shall not be liable under this
Section 8 to any indemnified party regarding any settlement or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent is consented to by such indemnifying party, which consent
shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
- -------- -------
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in
<PAGE>
15
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Final Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the Company
on the one hand or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director, officer, employee and agent of an Underwriter shall have the same
rights to contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each officer
of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Section 9, the Closing Date shall be postponed for such period,
not exceeding five Business Days, as the Representatives shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting Underwriter for damages
occasioned by its default hereunder.
<PAGE>
16
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I; or, if sent to the Company,
will be mailed, delivered or telefaxed to (918) 588-9704 and confirmed to it at
4200 One Williams Center, Tulsa, OK 74172, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
<PAGE>
17
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
State ment, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
<PAGE>
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
VINTAGE PETROLEUM, INC.
By: ...........................
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By:
By:
.....................
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
19
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Number of Underwritten Securities to be sold by the Company:
Number of Option Securities:
Price to Public per Share (include accrued dividends, if any):
Price to Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total:
Proceeds to Company per Share:
Proceeds to Company -- total:
Stock Exchange listing:
Other provisions:
Persons to deliver letters pursuant to Section 6(j):
Closing Date, Time and Location: , at 10:00 a.m. at
the offices of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, New York
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued by the Company without the consent of [name of the lead
Representative]:
Modification of items to be covered by the letter from
Arthur Andersen LLP delivered pursuant to
Section 6(e) at the Execution Time:
Information furnished to the Company through the Representatives for purposes of
Section 8:
Contact Information for notices to Underwriters:
<PAGE>
SCHEDULE II
-----------
Number of Number of
Securities to be Option Securities
Underwriters Purchased To Be Purchased
- ------------ ---------------- -----------------
---------------- -----------------
Total......... ================ =================
<PAGE>
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of officer, director or major stockholder of
Vintage Petroleum, Inc.]
Vintage Petroleum, Inc.
-----------------------
Public Offering of Common Stock
-------------------------------
[Date]
[Representatives]
As Representative[s] of the several Underwriters,
[c/o ]
[Address]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Vintage
Petroleum, Inc., a Delaware corporation (the "Company"), and [each of] you as
representative[s] of a group of Underwriters named therein, relating to an
underwritten public offering of [ ] Stock, [$ par value] (the "[
] Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of [ ], offer, sell, contract to sell, or otherwise
dispose of, directly or indirectly, any shares of capital stock of the Company
or any securities convertible into, or exercisable or exchangeable for such
capital stock, for a period of days after the date of this
Agreement; provided, however, that (i) the undersigned shall be entitled to
-------- -------
pledge, hypothecate or otherwise encumber shares of Common Stock, subject to the
foregoing restriction being agreed to by the pledgee of such shares and (ii) the
officers of the Company may, without such consent, sell or otherwise dispose of
up to shares of Common Stock in the aggregate.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
<PAGE>
EXHIBIT 1.2
Vintage Petroleum, Inc.
Debt Securities
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Vintage Petroleum, Inc., a corporation organized under the laws of Delaware
(the "Company"), proposes to sell to the several underwriters named in Schedule
II hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, the principal amount of its securities identified in
Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of [ ], between the Company and The Chase
Manhattan Bank, as trustee (the "Trustee"). To the extent there are no
additional Underwriters listed on Schedule I hereto other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
-------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(the file number of which is set forth in Schedule I hereto) on Form S-3,
including a related basic prospectus, for registration under the Act of the
offering and sale of
<PAGE>
2
the Securities. The Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously been
furnished to you. The Company will next file with the Commission one of the
following: (1) after the Effective Date of such registration statement, a
final prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Date of such registration
statement, an amendment to such registration statement (including the form
of final prospectus supplement) or (3) a final prospectus in accordance
with Rules 415 and 424(b). In the case of clause (1), the Company has
included in such registration statement, as amended at the Effective Date,
all information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in such registration statement and the
Final Prospectus. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall contain all Rule
430A Information, together with all other such required information, and,
except to the extent the Representatives shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein), the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; on the
Effective Date and at the Execution Time, the Registration Statement did
not or will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading; on the Effective Date and on
the Closing Date the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company makes no
-------- -------
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in or omitted from the Registration
Statement or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives specifically
for inclusion in the Registration Statement or the Final Prospectus (or any
supplement thereto).
<PAGE>
3
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Securities shall be deemed a representation and warranty by the Company,
as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
------------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
---------------------
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters
-----------
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Final Prospectus is otherwise required under Rule
424(b), the Company will cause the Final Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Final Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission pursuant
to Rule 424(b) or when any Rule 462(b) Registration Statement shall have
been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (4) of any request by the
Commission or its staff for any amendment of the Registration
<PAGE>
4
Statement, or any Rule 462(b) Registration Statement, or for any supplement
to the Final Prospectus or for any additional information, (5) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (6) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order or the suspension of any
such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (1) notify the Representatives of such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3) supply
any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a copy
of the Registration Statement (without exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required by the
Act, as many copies of each Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities, in any jurisdiction where it is not now so
subject.
(f) The Company will not, without the prior written consent of [name
of the lead Representative], offer, sell, contract to sell, pledge, or
otherwise dispose
<PAGE>
5
of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any debt securities issued or guaranteed by the Company (other than the
Securities) or publicly announce an intention to effect any such
transaction until the Business Day set forth on Schedule I hereto.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company shall have requested and caused Conner & Winters,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) each of the Company and Vintage Marketing, Inc., Vintage
Pipeline, Inc., Vintage Gas Inc., Vintage Petroleum International,
Inc., Vintage Petroleum Ecuador, Inc., Vintage Petroleum Argentina,
Inc., Vintage Oil Argentina, Inc. and Vintage Petroleum Boliviana,
Ltd. (individually a "Subsidiary" and collectively the "Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
its properties and conduct its
<PAGE>
6
business as described in the Final Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) the Securities conform in all material respects to the
description thereof contained in the Final Prospectus;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding instrument
enforceable against the Company in accordance with its terms (subject
to applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture (subject to applicable bankruptcy, reorganization,
insolvency, fraudulent transfer, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(v) to the knowledge of such counsel, (1) there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property, of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Final Prospectus, and (2) there is
no franchise, contract or other document of a character required to be
described in the Registration Statement or Final Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as
required; [and the statements included or incorporated by reference in
the Final Prospectus under the heading[s] "Tax Matters", " " and "
"[if the Final Prospectus contains a discussion of specific legal or
regulatory matters or proceedings, add references to appropriate
sections of the Final Prospectus, with such knowledge qualifiers of
such counsel as may be necessary] fairly summarize the matters therein
described;]
<PAGE>
7
(vi) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; and although such counsel is not passing
upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Final Prospectus, except as otherwise
specifically dealt with in their opinion, and relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company, no facts have come to the attention of
such counsel that have caused such counsel to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Final Prospectus as
of its date and on the Closing Date included or includes any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in each
case, other than the financial statements and other financial and
statistical information contained therein, as to which such counsel
need express no opinion);
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Final Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(ix) no consent, approval, authorization, or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained
under the Act and the Trust Indenture Act and such as may be required
under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriters in the
manner contemplated in this Agreement and in the Final Prospectus and
such other approvals (specified in such opinion) as have been
obtained;
(x) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation of, or
constitute a default under any law
<PAGE>
8
or the charter or by-laws of the Company or the terms of any indenture
or other agreement or instrument known to such counsel and to which
the Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(xi) except as described in that certain Registration Rights
Agreement dated as of November 4, 1998, between the Company and Elf
Aquitaine, no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Oklahoma, the corporate laws of the State of Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
(c) The Representatives shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Final Prospectus (together with any supplement thereto) and
other related matters as the Representatives may reasonably require, and
the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the Vice
Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus, any supplements to the Final
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied in all material respects with all the
agreements and satisfied in all material respects all the conditions
on its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by appropriate governmental authorities; and
<PAGE>
9
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(e) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and that they
have performed a review of the most recent unaudited financial statements
included or incorporated by reference in the Registration Statement and
Final Prospectus, if any, in accordance with Statement on Auditing
Standards No. 71, and stating in effect, except as provided in Schedule I
hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, as indicated in their
report, if any, incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and certain committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date
of the most recent audited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to
believe that:
<PAGE>
10
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the Company
or decreases in the stockholders' equity of the Company as
compared with the amounts shown on the date of the most recent
financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in
the Registration Statement and the Final Prospectus, or for the
period from the date of the most recent financial statements
(other than any capsule information), audited or unaudited,
included or incorporated by reference in the Registration
Statement and the Final Prospectus, to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year, in revenues or income before provision for
income taxes or in total or per share amounts of net income of
the Company and its subsidiaries, except in all instances for
changes or decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as
to the significance thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the unaudited amounts of any capsule information
included or incorporated by reference in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included
<PAGE>
11
or incorporated by reference in the Registration Statement and
the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, the information included or
incorporated by reference in Items 1, 2, 6, and 7 of the Company's
most recent Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final Prospectus, the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, and any information of an accounting or financial nature
appearing in a Current Report on Form 8-K incorporated by reference in
the Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding any
questions of legal interpretation.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 6 (other
than any change or decrease specified in such letter or letters delivered
at the Execution Time) or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
<PAGE>
12
(h) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, NY 10019, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through the Representatives on demand for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of one Underwriters'
counsel) approved by the Representatives that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein and (ii) with respect to any
untrue statement or omission of a material fact made in any Preliminary Final
Prospectus, the indemnity agreement contained in this Section 8(a) shall
<PAGE>
13
not inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where (x) the Company had previously furnished copies of the Final Prospectus to
the Representatives, (y) the untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity, and will reimburse the Company and such other persons for any legal
or other expenses reasonably incurred by the Company or such other persons in
connection with investigating or defending any such action or claim as such
expenses are incurred. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company acknowledges
that the statements described in Schedule I hereto in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- -------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are
<PAGE>
14
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnifying
party shall not be liable under this Section 8 to any indemnified party
regarding any settlement or compromise or consent to the entry of any judgment
with respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent is consented to
by such indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall any Underwriter (except as may be
- -------- -------
provided in any agreement among underwriters relating to the offering of the
Securities) be responsible for any amount in excess of the underwriting discount
or commission applicable to the Securities purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received by
it, and benefits received by the Underwriters shall be deemed to be equal to the
total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8,
<PAGE>
15
each person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter, and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Final Prospectus or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war, or other
calamity or crisis the effect of which on financial markets is such as to make
it, in the sole judgment of the Representatives, impractical or inadvisable to
proceed with the offering or delivery of the Securities as contemplated by the
Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and
<PAGE>
16
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I or, if sent to the Company,
will be mailed, delivered or telefaxed to (918) 588-9704 and confirmed to it at
4200 One Williams Center, Tulsa, OK 74172, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
---------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
<PAGE>
17
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
" Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such
rules under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated
thereunder.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
VINTAGE PETROLEUM, INC.
By:
------------------------
Name:
Title:
<PAGE>
18
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By:
By:
-----------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
1
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , at 10:00 a.m. at
the offices of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, New York
Type of Offering: [Non-delayed] [Delayed]
Date referred to in Section 5(f) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of [name of
the lead Representative]:
Modification of items to be covered by the letter from Arthur Andersen LLP
delivered pursuant to Section 6(e) at the Execution Time:
Information furnished to the Company through the Representatives for purposes of
Section 8:
Contact Information for notices to Underwriters:
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ------------------
.................. $
_______________
Total ......................... $
===============
<PAGE>
EXHIBIT 1.3
Vintage Petroleum Capital Trust I
Preferred Securities
Guaranteed to a Limited Extent by
Vintage Petroleum, Inc.
Underwriting Agreement
New York, New York
[Date]
To the Representatives
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Ladies and Gentlemen:
Vintage Petroleum Capital Trust I, a Delaware statutory business trust
(the "Trust"), and Vintage Petroleum, Inc., a corporation organized under the
laws of Delaware (the "Company") as sponsor of the Trust and as guarantor,
propose to sell to the several underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the number of Preferred Shares (the "Preferred Shares"), of the
Trust set forth in Schedule I hereto (said shares to be issued and sold by the
Trust and the Company being hereinafter called the "Underwritten Securities").
The Trust and the Company also propose to grant to the Underwriters an option to
purchase up to the number of additional Preferred Shares set forth in Schedule
II hereto to cover over-allotments (the "Option Securities"; the Option
Securities, together with the Underwritten Securities, being hereinafter called
the "Securities"). The Securities will represent undivided beneficial ownership
interests in the assets of the Trust, will be guaranteed by the Company as to
the payment of distributions, and as to payments on liquidation or redemption,
to the extent set forth in a guarantee agreement (the "Guarantee") between the
Company and The Chase Manhattan Bank, as trustee (the "Guarantee Trustee"), [and
will be effectively convertible into shares of the common stock, $.005 par value
("Common Stock"), of the Company initially at the conversion price set forth
herein.] The Securities are to be issued under the Amended and Restated
Declaration of Trust of Vintage Petroleum Capital Trust I (the "Declaration")
dated as of [ ] among [ ], [ ] and [
] (each a "Regular Trustee" and, collectively, the "Regular Trustees"), The
Chase Manhattan Bank, as Property Trustee (the "Property Trustee"), Chase
Manhattan Bank Delaware, as Delaware Trustee (the "Delaware Trustee"), and the
Company, as Sponsor. The proceeds of the sale by the Trust of the Securities
and its [ ]% Common Securities, liquidation amount $[ ] per Common Security
("Common Securities"), are to be invested in the [ ]% [Convertible] Junior
Subordinated Debentures due [ ] (the "[Convertible] Debentures") of the
Company, to be issued under an Indenture (the "Indenture") between the Company
and The Chase Manhattan Bank, as Trustee (the "Indenture Trustee"). To the
extent there are no additional Underwriters listed on Schedule I hereto, other
than you, the term Representatives as used herein shall mean you, as
Underwriters, and the terms
<PAGE>
2
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. Each of the Company and the Trust
-------------------------------
represents and warrants to, and agrees with, each Underwriter as set forth below
in this Section 1.
(a) Each of the Company and the Trust meets the requirements for use
of Form S-3 under the Act and has prepared and filed with the Commission a
registration statement (the file number of which is set forth in Schedule I
hereto) on Form S-3, including a related basic prospectus, for registration
under the Act of the offering and sale of the Securities. Each of the
Company and the Trust may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has previously been
furnished to you. Each of the Company and the Trust will next file with
the Commission one of the following: (1) after the Effective Date of such
registration statement, a final prospectus supplement relating to the
Securities in accordance with Rules 430A and 424(b), (2) prior to the
Effective Date of such registration statement, an amendment to such
registration statement (including the form of final prospectus supplement)
or (3) a final prospectus in accordance with Rules 415 and 424(b). In the
case of clause (1), each of the Company and the Trust has included in such
registration statement, as amended at the Effective Date, all information
(other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Final
Prospectus. As filed, such final prospectus supplement or such amendment
and form of final prospectus supplement shall contain all Rule 430A
Information, together with all other such required information, and, except
to the extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time,
shall contain only such specific additional information and other changes
(beyond that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as each of the Company and the Trust has advised you, prior to
the Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will,
and when the Final Prospectus is first filed (if required) in accordance
with Rule 424(b) and on the Closing Date (as defined herein) and on any
date on which Option Securities are purchased, if such date is not the
Closing Date (a "settlement date"), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with
<PAGE>
3
the applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not, include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
--------
however, that neither the Company nor the Trust makes any representations
-------
or warranties as to the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company or the Trust by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration Statement or
the Final Prospectus (or any supplement thereto).
Any certificate signed by any officer of the Company or trustee of the
Trust and delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a representation
and warranty by the Company or the Trust, as applicable, as to matters covered
thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
------------------
reliance upon the representations and warranties herein set forth, the Company
and the Trust agree that the Trust will sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Trust, at
the Price to Public per share set forth in Schedule I hereto, the amount of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule
II hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company and the Trust agree
that the Trust will hereby grant an option to the several Underwriters to
purchase, severally and not jointly, up to the number of Option Securities set
forth in Schedule I hereto at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the Final Prospectus upon written or telegraphic notice by the
Representatives to the Company setting forth the number of shares of the Option
Securities as to which the several Underwriters are exercising the option and
the settlement date. The number of shares of the Option Securities to be
purchased by each Underwriter shall be the same percentage of the total number
of shares of the Option Securities to be purchased by the several Underwriters
as such Underwriter is purchasing of the Underwritten Securities, subject to
such adjustments as you in your absolute discretion shall make to eliminate any
fractional shares.
As compensation for the commitments of the Underwriters contained in
this Section 2, the Company hereby agrees to pay to the Representatives for the
respective accounts of the Underwriters the amount set forth in Schedule I
hereto per Security times the total number of Underwritten Securities or Option
Securities purchased by the Underwriters on the Closing Date or the settlement
date for the Option Securities, respectively, as
<PAGE>
4
commissions for the sale of such Underwritten Securities or Option Securities
under this Agreement. Such payment will be made on the Closing Date with respect
to the Underwritten Securities and on the settlement date for the Option
Securities with respect to the Option Securities.
3. Delivery and Payment. Delivery of and payment for the
---------------------
Underwritten Securities and the Option Securities (if the option provided for in
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made on the date and at the time
specified in Schedule I hereto or at such time on such later date not more than
three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer payable in
same-day funds to an account specified by the Company and the Trust. Delivery
of the Underwritten Securities and the Option Securities shall be made through
the facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Trust will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 388
Greenwich Street, New York, New York, on the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Trust by wire transfer payable in
same-day funds to an account specified by the Company and the Trust. If
settlement for the Option Securities occurs after the Closing Date, the Company
and the Trust will deliver to the Representatives on the settlement date for the
Option Securities, and the obligation of the Underwriters to purchase the Option
Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
-------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. Each of the Company and the Trust agrees with the
-----------
several Underwriters that:
(a) Each of the Company and the Trust will use its best efforts to
cause the Registration Statement, if not effective at the Execution Time,
and any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, neither the Company nor the Trust will
file any amendment of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus or any Rule 462(b) Registration Statement unless the Company has
furnished you a copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably object.
Subject to the foregoing sentence, if the Registration Statement has become
or becomes effective pursuant to Rule 430A, or filing of the Final
Prospectus is otherwise required under Rule 424(b), the Company and the
Trust will cause the
<PAGE>
5
Final Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence
satisfactory to the Representatives of such timely filing. The Company will
promptly advise the Representatives (1) when the Registration Statement, if
not effective at the Execution Time, shall have become effective, (2) when
the Final Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(3) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Final Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of
the receipt by the Company or the Trust of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the institution or threatening of any proceeding for such
purpose. The Company and the Trust will use their best efforts to prevent
the issuance of any such stop order or the suspension of any such
qualification and, if issued, to obtain as soon as possible the withdrawal
thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder, the
Company and the Trust promptly will (1) notify the Representatives of such
event, (2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or supplement
which will correct such statement or omission or effect such compliance and
(3) supply any supplemented Final Prospectus to you in such quantities as
you may reasonably request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company and the Trust will furnish to the Representatives and
counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Final Prospectus
and the Final Prospectus and any supplement thereto as the Representatives
may reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company and the Trust will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions as the
<PAGE>
6
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company or the Trust be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction where it
is not now so subject.
(f) The Company will not, without the prior written consent of [name
of the lead Representative], offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act,
any other shares of [ ] Stock or any securities convertible into, or
exercisable, or exchangeable for, shares of [ ] Stock; or publicly
announce an intention to effect any such transaction, until the Business
Day set forth on Schedule I hereto, provided, however, that the Company may
-------- -------
(i) register the Securities and sell the shares of the Securities offered
in the offering, (ii) register, issue and sell Common Stock pursuant to any
employee or director stock option plan, stock ownership plan or dividend
reinvestment plan of the Company and (iii) the Company may issue Common
Stock issuable upon the conversion of securities or the exercise of
warrants outstanding at the Execution Time.
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
--------------------------------------------------
obligations of the Underwriters to purchase the Underwritten Securities and any
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Trust
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Trust made in any certificates pursuant to the provisions
hereof, to the performance by the Company and the Trust of their obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 PM New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 PM New
York City time on such date or (ii) 9:30 AM on the Business Day following
the day on which the public offering price was determined, if such
determination occurred after 3:00 PM New York City time on such date; if
filing of the Final Prospectus, or any supplement thereto, is required
pursuant to Rule 424(b), the Final Prospectus, and any such supplement,
<PAGE>
7
will be filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or threatened.
(b) The Company and the Trust shall have requested and caused
Conner & Winters, counsel for the Company and the Trust, to have furnished
to the Representatives their opinion, dated the Closing Date and addressed
to the Representatives, to the effect that:
(i) each of the Company and Vintage Marketing, Inc., Vintage
Pipeline, Inc., Vintage Gas Inc., Vintage Petroleum International,
Inc., Vintage Petroleum Ecuador, Inc., Vintage Petroleum Argentina,
Inc., Vintage Oil Argentina, Inc. and Vintage Petroleum Boliviana,
Ltd. (individually a "Subsidiary" and collectively the "Subsidiaries")
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority to own
its properties and conduct its business as described in the Final
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or
leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the capital stock of the Company
conforms in all material respects to the description thereof contained
in the Final Prospectus; the outstanding shares of Common Stock have
been duly and validly authorized and issued and are fully paid and
nonassessable; [the Securities have been duly authorized for listing,
subject to official notice of issuance [and evidence of satisfactory
distribution], on the New York Stock Exchange;] and the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Securities;
(iv) to the knowledge of such counsel, (A) there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Trust, the Company or any of its subsidiaries or its or their property
of a character required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final Prospectus, and (B)
there is no franchise, contract or other document of a character
required to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; [and the statements included or
<PAGE>
8
incorporated by reference in the Final Prospectus under the heading[s]
"Tax Matters", " " and " " [if the Final Prospectus contains a
discussion of specific legal or regulatory matters or proceedings, add
references to appropriate sections of the Final Prospectus, with such
knowledge qualifiers of such counsel as may be necessary,] fairly
summarize the matters therein described];
(v) the Registration Statement has become effective under the
Act; any required filing of the Basic Prospectus, any Preliminary
Final Prospectus and the Final Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of
the Act and the Exchange Act and the respective rules thereunder; and
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Final
Prospectus, except as otherwise specifically dealt with in their
opinion, and relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company, no
facts have come to the attention of such counsel that have caused such
counsel to believe that on the Effective Date or at the Execution Time
the Registration Statement contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Final Prospectus as of its date and on the
Closing Date included or includes any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading (in each case, other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no opinion);
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and duly executed and delivered by the Trust;
(vii) the Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended;
(viii) no consent, approval, authorization, or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, in the Indenture, in the Guarantee
or in the Declaration, except such as have been obtained under the Act
and the Trust Indenture Act and such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in this Agreement and in the Final
<PAGE>
9
Prospectus and such other approvals (specified in such opinion) as
have been obtained;
(ix) neither the issue and sale of the Securities or the
[Convertible] Debentures, the execution and delivery of the
Declaration, the Indenture or the Guarantee, nor the consummation of
any other of the transactions herein or therein contemplated nor the
fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or constitute a default under any law or
the charter or by-laws of the Company or its subsidiaries or the
Declaration or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Trust, the Company
or any of its subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the Trust, the
Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Trust, the Company or any of its subsidiaries;
(x) except as described in that certain Registration Rights
Agreement dated as of November 4, 1998, between the Company and Elf
Aquitaine, no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement;
(xi) to the knowledge of such counsel, (A) the Trust has
conducted and will conduct no business other than the transactions
contemplated by this Agreement and as described in the Final
Prospectus; (B) the Trust is not a party to or bound by any agreement
or instrument other than this Agreement, the Declaration and the
agreements and instruments contemplated by the Declaration and the
Final Prospectus; and (C) the Trust has no liabilities or obligations
other than those arising out of the transactions contemplated by this
Agreement and the Declaration and described in the Final Prospectus;
(xii) the Indenture has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles
of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law); and the [Convertible] Debentures
have been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and
paid for by the Trust, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
(subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles
of equity, regardless of whether such enforceability is considered in
a proceeding in equity or at law;
(xiii) the Guarantee has been duly authorized, executed and
delivered by the Company, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, reorganization, insolvency,
fraudulent transfer,
<PAGE>
10
moratorium or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether such enforceability is considered in a proceeding in equity
or at law); [and]
(xiv) to the knowledge of such counsel, all of the issued and
outstanding Common Securities will be owned directly by the Company
free and clear of any security interests, claims, liens or
encumbrances[.][; and]
[(xv) The Securities are convertible into Common Stock of the
Company in accordance with the terms of the Indenture and the
Declaration; the shares of Common Stock initially issuable upon
conversion of the Securities have been duly authorized and validly
reserved for issuance upon such conversion of the Securities, and such
shares, when issued and delivered upon such conversion in the manner
provided in the Indenture and the Declaration, will be validly issued,
fully paid and nonassessable. As of the date hereof, holders of
outstanding shares of Common Stock of the Company are not entitled to
statutory or contractual preemptive rights in connection with the
issuance of such shares upon such conversion.]
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Oklahoma, the corporate laws of the State of Delaware or the Federal
laws of the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent they deem proper,
on certificates of responsible officers of the Company or trustees of the
Trust and public officials. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company and the Trust shall have furnished to the
Representatives the opinion of [ ], special tax counsel to the
Company and the Trust, dated the Closing Date, to the effect that:
(i) the Trust will be classified as a grantor trust and not as a
partnership or an association taxable as a corporation; for United
States federal income tax purposes, each holder of Securities will be
considered the owner of an undivided interest in the [Convertible]
Debentures, and each holder will be required to include in its gross
income any original issue discount accrued or other income or gain
with respect to its allocable share of the [Convertible] Debentures;
(ii) the [Convertible] Debentures will be classified for United
States federal income tax purposes as indebtedness of the Company; and
(iii) the statements set forth under the heading ["United States
Federal Income Taxation"] in the Final Prospectus, insofar as such
statements purport to summarize the United States federal income tax
consequences of the purchase, ownership and disposition of Securities,
provide a fair summary of such consequences.
<PAGE>
11
(d) The Company and the Trust shall have furnished to the
Representatives the opinion of [ ], special
Delaware counsel to the Trust, dated the Closing Date, to the effect that:
(i) the Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust
Act, and all filings required under the laws of the State of Delaware
with respect to the creation and valid existence of the Trust as a
business trust have been made;
(ii) under the Delaware Business Trust Act and the Declaration,
the Trust has the trust power and authority to own its property and
conduct its business, all as described in the Final Prospectus;
(iii) the Declaration constitutes a valid and binding obligation
of the Company and the trustees of the Trust, and is enforceable
against the Company and the trustees of the Trust in accordance with
its terms;
(iv) under the Delaware Business Trust Act and the Declaration,
the Trust has the trust power and authority (A) to execute and
deliver, and to perform its obligations under, the Underwriting
Agreement, and (B) to issue and perform its obligations under the
Securities and the Common Securities;
(v) under the Delaware Business Trust Act and the Declaration,
the execution and delivery by the Trust of the Underwriting Agreement, and
the performance by the Trust of its obligations thereunder, have been duly
authorized by all necessary trust action on the part of the Trust;
(vi) the Securities have been duly authorized by the Declaration
and are duly and validly issued and fully paid and nonassessable undivided
beneficial interests in the assets of the Trust and are entitled to the
benefits of the Declaration; the holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit organized under
the General Corporation Law of the State of Delaware; provided, however,
-------- -------
that the holders may be obligated, pursuant to the Declaration, (A) to
provide indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of Securities
certificates and the issuance of replacement Securities certificates, and
(B) to provide security or indemnity in connection with requests of or
directions to the Property Trustee to exercise its rights and powers under
the Declaration;
(vii) under the Delaware Business Trust Act and the Declaration,
the issuance of the Securities and the Common Securities is not subject to
preemptive rights;
(viii) the Common Securities have been duly authorized by the
Declaration and are duly and validly issued and fully paid undivided
beneficial interests in the assets of the Trust and are entitled to the
benefits of the Declaration; and
<PAGE>
12
(ix) the issuance and sale by the Trust of the Securities and
the Common Securities, the exchange of the [Convertible] Debentures for the
Securities, the execution, delivery and performance by the Trust of the
Underwriting Agreement, the consummation by the Trust of the transactions
contemplated thereby and compliance by the Trust with its obligations
thereunder, (A) do not violate (1) any of the provisions of the certificate
of the Trust or the Declaration or (2) any applicable Delaware law or
administrative regulation thereunder and (B) do not require any consent,
approval, order or authorization of any Delaware court or Delaware
governmental authority or agency under the laws of the State of Delaware.
(e) The Chase Manhattan Bank shall have furnished to the
Representatives the opinion of [ ], special counsel to The
Chase Manhattan Bank, dated the Closing Date, to the effect that:
(i) The Chase Manhattan Bank has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of New York;
(ii) each of the Declaration, the Indenture and the Guarantee
has been duly authorized, executed and delivered by the Property
Trustee, the Indenture Trustee and the Guarantee Trustee,
respectively, and constitutes a legal, valid and binding instrument
enforceable against the Property Trustee, the Indenture Trustee and
the Guarantee Trustee in accordance with its respective terms (subject
to applicable bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(iii) no consent, approval, authorization or order of any
federal or New York State banking authority is required for the
consummation of the transactions contemplated by the Declaration, the
Indenture or the Guarantee by the Property Trustee, the Indenture Trustee
or the Guarantee Trustee, respectively; and
(iv) neither the execution and delivery of the Declaration, the
Indenture or the Guarantee, the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of the
terms hereof or thereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or
by-laws of The Chase Manhattan Bank or the terms of any indenture or
other agreement or instrument known to such counsel and to which The
Chase Manhattan Bank is a party or bound or any judgment, order or
decree known to such counsel to be applicable to The Chase Manhattan
Bank of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over The Chase
Manhattan Bank.
(f) Chase Manhattan Bank Delaware shall have furnished to the
Representatives the opinion of [ ], Counsel of Chase
Manhattan Bank Delaware, dated the Closing Date, to the effect that Chase
<PAGE>
13
Manhattan Bank Delaware has been duly incorporated and is validly existing
as a banking corporation in good standing under the laws of the State of
Delaware; and has full corporate power and authority to act as trustee of a
statutory business trust under the laws of the State of Delaware.
(g) The Representatives shall have received from Cravath, Swaine &
Moore , counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the Final
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company and the
Trust shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company and the Trust, signed by the Chairman of the
Board, the Vice Chairman of the Board or the President and the principal
financial or accounting officer of the Company and a Regular Trustee of the
Trust, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Final
Prospectus, any supplements to the Final Prospectus and this Agreement and
that:
(i) the representations and warranties of the Company and the
Trust in this Agreement are true and correct in all material respects
on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company and the Trust have complied in all
material respects with all the agreements and satisfied in all
material respects all the conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened by appropriate governmental authorities; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse change in the condition (financial or otherwise), earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final
Prospectus (exclusive of any supplement thereto).
(i) The Company shall have requested and caused Arthur Andersen LLP
to have furnished to the Representatives, at the Execution Time and at the
Closing Date, letters, (which may refer to letters previously delivered to
one or more of the Representatives), dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and
<PAGE>
14
the respective applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the most recent
unaudited financial statements included or incorporated by reference in the
Registration Statement and Final Prospectus, if any, in accordance with
Statement on Auditing Standards No. 71, and stating in effect, except as
provided in Schedule I hereto, that:
(i) in their opinion the audited financial statements and
financial statement schedules and any pro forma financial statements
included or incorporated by reference in the Registration Statement
and the Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; their
limited review, in accordance with standards established under
Statement on Auditing Standards No. 71, of the most recent unaudited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus, as indicated in their
report, if any, incorporated by reference in the Registration
Statement and the Final Prospectus; carrying out certain specified
procedures (but not an examination in accordance with generally
accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the stockholders,
directors and certain committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and
its subsidiaries as to transactions and events subsequent to the date
of the most recent audited financial statements included or
incorporated by reference in the Registration Statement and Final
Prospectus, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included or
incorporated by reference in the Registration Statement and the
Final Prospectus do not comply as to form in all material
respects with applicable accounting requirements of the Act and
with the related rules and regulations adopted by the Commission
with respect to financial statements included or incorporated by
reference in quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of the
most recent financial statements (other than any capsule
information), audited or unaudited, included or incorporated by
reference in the Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the Company
or decreases in the stockholders'
<PAGE>
15
equity of the Company as compared with the amounts shown on the
date of the most recent financial statements (other than any
capsule information), audited or unaudited, included or
incorporated by reference in the Registration Statement and the
Final Prospectus, or for the period from the date of the most
recent financial statements (other than any capsule information),
audited or unaudited, included or incorporated by reference in
the Registration Statement and the Final Prospectus, to such
specified date there were any decreases, as compared with the
corresponding period in the preceding year, in revenues or income
before provision for income taxes or in total or per share
amounts of net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(3) the information included or incorporated by reference in
the Registration Statement and Final Prospectus in response to
Regulation S-K, Item 301 (Selected Financial Data), Item 302
(Supplementary Financial Information), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(4) the unaudited amounts of any capsule information
included or incorporated by reference in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements for the same
periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement and the Final Prospectus; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, the information included or
incorporated by reference in Items 1, 2, 6, and 7 of the Company's
most recent Annual Report on Form 10-K, incorporated by reference in
the Registration Statement and the Final Prospectus, the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated by
reference in each of the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration Statement and the Final
Prospectus, and any information of an accounting or financial nature
appearing in a Current Report on Form 8-K incorporated by reference
in the Registration Statement and the Final Prospectus, agrees with
the accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation.
<PAGE>
16
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(j) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (i) of this Section 6 (other
than any change or decrease specified in such letter or letters delivered
at the Execution Time) or (ii) any change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole, whether or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto) the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any supplement thereto).
(k) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents as
the Repre sentatives may reasonably request.
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(m) The Securities shall have been listed and admitted and authorized
for trading on the Stock Exchange specified in Schedule I hereto, and
satisfactory evidence of such actions shall have been provided to the
Representatives.
(n) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
each person listed in Schedule I hereto.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives . Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at 825 Eighth Avenue, New York, New York 10019, on the Closing
Date.
<PAGE>
17
7. Reimbursement of Underwriters' Expenses. If the sale of the
----------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company or the Trust to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company will reimburse the
Underwriters severally through the Representatives on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of one
Underwriters' counsel) approved by the Representatives that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
8. Indemnification and Contribution. (a) The Company agrees to
---------------------------------
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Securities as originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
-------- -------
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company or the Trust by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein and (ii) with respect to
any untrue statement or omission of a material fact made in any Preliminary
Final Prospectus, the indemnity agreement contained in this Section 8(a) shall
not inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where (x) the Company had previously furnished copies of the Final Prospectus to
the Representatives, (y) the untrue statement or omission of a material fact
contained in the Preliminary Final Prospectus was corrected in the Final
Prospectus and (z) there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Trust, the Company, each of its directors, each of its
officers who signs the Registration Statement, and each person who controls the
Company or the Trust within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to written information relating to such
<PAGE>
18
Underwriter furnished to the Company or the Trust by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity, and will reimburse the Trust,
the Company and such other persons for any legal or other expenses reasonably
incurred by the Trust, the Company or such other persons in connection with
investigating or defending any such action or claim as such expenses are
incurred. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company and the Trust acknowledge that
the statements described in Schedule I hereto in any Preliminary Final
Prospectus and the Final Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters for inclusion in any
Preliminary Final Prospectus or the Final Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
-------- --------
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party shall not be liable under this
Section 8 to any indemnified party regarding any settlement or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent is consented to by such indemnifying party, which consent
shall not be unreasonably withheld.
<PAGE>
19
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company,
the Trust and one or more of the Underwriters may be subject in such proportion
as is appropriate to reflect the relative benefits received by the Company and
the Trust on the one hand and by the Underwriters on the other from the offering
of the Securities; provided, however, that in no case shall any Underwriter
-------- -------
(except as may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and the Trust on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by the
Company and the Trust shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses) received by the Trust, and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company or the Trust on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or the Trust within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company or
trustee of the Trust shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
9. Default by an Underwriter. If any one or more Underwriters shall
--------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
-------- -------
amount of Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any
<PAGE>
20
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company, the Trust
and any nondefaulting Underwriter for damages occasioned by its default
hereunder.
10. Termination. This Agreement shall be subject to termination in
------------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
-------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Trust or its trustees, the Company or its officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of the officers, directors, employees, agents or
controlling persons referred to in Section 8 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
--------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed as set forth in Schedule I; or, if sent to the Trust or
the Company, will be mailed, delivered or telefaxed to (918) 588-9704 and
confirmed to it at 4200 One Williams Center, Tulsa, OK 74172, attention of the
Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
-----------
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
---------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
<PAGE>
21
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
------------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Final Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
State ment, any post-effective amendment or amendments thereto and any
Rule 462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the Final Prospectus,
together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
<PAGE>
22
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the registration statement referred to in
Section 1(a) hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Trust and the several Underwriters.
Very truly yours,
VINTAGE PETROLEUM, INC.
By: ___________________________________________
Name:
Title:
VINTAGE PETROLEUM
CAPITAL TRUST I
By: ___________________________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[REPRESENTATIVES]
By:
By:
- ----------------------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE>
1
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Number of Underwritten Securities to be sold by the Trust and the Company:
Number of Option Securities:
Price to Public per Share (include accrued distributions, if any):
Price to Public -- total:
Underwriting Commissions per Share:
Underwriting Commissions -- total:
Stock Exchange listing:
Other provisions:
Persons to deliver letters pursuant to Section 6(n):
Closing Date, Time and Location: , at 10:00 a.m. at the
offices of Cravath, Swaine & Moore, 825
Eighth Avenue, New York, New York
Type of Offering: Non-Delayed
Date referred to in Section 5(f) after which the Company may offer or sell
securities issued by the Company without the consent of [name of the lead
Representative]:
Modification of items to be covered by the letter from
Arthur Anderson LLP delivered pursuant to
Section 6(i) at the Execution Time:
Information furnished to the Company through the Representatives for purposes of
Section 8:
Contact Information for notices to Underwriters:
<PAGE>
SCHEDULE II
-----------
Number of Number of
Securities to be Option Securities
Underwriters Purchased To Be Purchased
- ------------ ---------------- -----------------
---------------- -----------------
Total......... ================ =================
<PAGE>
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of officer, director or major stockholder of
Vintage Petroleum, Inc.]
Vintage Petroleum Capital Trust I
Vintage Petroleum, Inc.
Public Offering of Preferred Securities
---------------------------------------
[Date]
[Representatives]
As Representative[s] of the several Underwriters,
[c/o ]
[Address]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Vintage Petroleum
Capital Trust I (the "Trust "), Vintage Petroleum, Inc., a Delaware corporation
(the "Company"), and [each of] you as representative[s] of a group of
Underwriters named therein, relating to an underwritten public offering of
Preferred Securities of the Trust.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of [ ], offer, sell, contract to sell, or otherwise
dispose of, directly or indirectly, any shares of capital stock of the Company
or any securities convertible into, or exercisable or exchangeable for such
capital stock, for a period of days after the date of this
Agreement; provided, however, that (i) the undersigned shall be entitled to
-------- -------
pledge, hypothecate or otherwise encumber shares of Common Stock, subject to the
foregoing restriction being agreed to by the pledgee of such shares and (ii) the
officers of the Company may, without such consent, sell or otherwise dispose of
up to shares of Common Stock in the aggregate.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
<PAGE>
EXHIBIT 3.3
Certificate of Designation
of
Series A Junior Participating Preferred Stock
of
Vintage Petroleum, Inc.
(Pursuant to Section 151 of the General
Corporation Law of the State of Delaware)
Vintage Petroleum, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (hereinafter called the
"Corporation"), in accordance with the provisions of Section 103 thereof, DOES
HEREBY CERTIFY:
That, pursuant to the authority granted to and vested in the Board of
Directors of the Corporation in accordance with the provisions of the Restated
Certificate of Incorporation, as amended, of the Corporation (the "Certificate
of Incorporation"), the following resolution was duly adopted by the Board of
Directors of the Corporation as required by Section 151 of the General
Corporation Law of the State of Delaware at a meeting duly called and held on
March 16, 1999:
RESOLVED, that, pursuant to the authority granted to and vested in the
Board of Directors of the Corporation (hereinafter called the "Board of
Directors") in accordance with the provisions of the Certificate of
Incorporation, the Board of Directors hereby creates a series of Preferred
Stock, with a par value of $.01 per share, of the Corporation and hereby
states the designation and number of shares, and fixes the relative rights,
preferences and limitations thereof (in addition to the provisions set
forth in the Certificate of Incorporation which are applicable to the
Preferred Stock of all classes and series) as follows:
Series A Junior Participating Preferred Stock
Section 1. Designation, Par Value and Amount. The shares of such
series shall be designated as "Series A Junior Participating Preferred Stock"
(hereinafter referred to as "Series A Preferred Stock"), the shares of such
series shall be with par value of $.01 per share, and the number of shares
constituting such series shall be 80,000; provided, however, that, if more than
a total of 80,000 shares of Series A Preferred Stock shall be issuable upon the
exercise of Rights (the "Rights") issued pursuant to the Rights Agreement, dated
as of March 16, 1999, between the Corporation and ChaseMellon Shareholder
Services, L.L.C., as Rights Agent (as amended from time to time) (the "Rights
Agreement"), the Board of Directors, pursuant to Section 151 of the General
Corporation Law of the State of Delaware, shall direct by resolution or
resolutions that a certificate be properly executed, acknowledged and filed
providing for the total number of shares of Series A Preferred Stock authorized
to be issued to be increased (to the extent that the Certificate of
Incorporation then permits) to the largest number of whole shares (rounded up to
the nearest whole number) issuable upon exercise of the Rights. Such number of
shares of the Series A Preferred Stock may be
<PAGE>
increased or decreased by resolution of the Board of Directors; provided, that
no decrease shall reduce the number of shares of Series A Preferred Stock to a
number less than the number of shares then outstanding plus the number of shares
issuable upon exercise or conversion of outstanding rights, options or other
securities issued by the Corporation.
Section 2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Preferred Stock with respect to dividends, the holders
of shares of Series A Preferred Stock, in preference to the holders of
shares of any class or series of stock of the Corporation ranking junior to
the Series A Preferred Stock in respect thereof, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on
the first business day of January, April, July and October of each year
(each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $10.00 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all
cash dividends, and 1,000 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions (other than a
dividend payable in shares of Common Stock, par value $.005 per share, of
the Corporation (the "Common Stock") or a subdivision of the outstanding
shares of Common Stock, by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment
Date or, with respect to the first Quarterly Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series A
Preferred Stock. In the event the Corporation shall at any time after the
record date for the initial distribution of the Rights pursuant to the
Rights Agreement (the "Rights Declaration Date") (i) declare or pay any
dividend on the Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then, in each such case, the
amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Preferred Stock as provided in paragraph (A) of this Section 2
immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock or a
subdivision of the outstanding shares of Common Stock); provided, that, in
the event no dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly Dividend Payment Date
and the next subsequent
-2-
<PAGE>
Quarterly Dividend Payment Date (or, with respect to the first Quarterly
Dividend Payment Date, the period between the first issuance of any share
or fraction of a share of Series A Preferred Stock and such first Quarterly
Dividend Payment Date), a dividend of $10.00 per share on the Series A
Preferred Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series A Preferred
Stock, unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue and be cumulative from the date of issue
of such shares, or unless the date of issue is a date after the record date
for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and on or before such Quarterly
Dividend Payment Date, in which case dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of Series
A Preferred Stock in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be allocated pro rata
on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
not more than 60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. In addition to any other voting rights
required by law, the holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Except as provided in paragraph (C) of this Section 3 and subject
to the provision for adjustment hereinafter set forth, each share of Series
A Preferred Stock shall entitle the holder thereof to 1,000 votes on all
matters submitted to a vote of the stockholders of the Corporation. In the
event the Corporation shall, at any time after the Rights Declaration Date
(i) declare or pay any dividend on the Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine
the outstanding Common Stock into a smaller number of shares, then in each
such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Preferred Stock and the holders of shares of Common
Stock shall vote together as one class on all matters submitted to a vote
of stockholders of the Corporation.
-3-
<PAGE>
(C) (i) If, on the date used to determine stockholders of record
for any meeting of stockholders for the election of directors, a default in
preference dividends (as defined in subparagraph (v) below) on the Series A
Preferred Stock shall exist, the holders of the Series A Preferred Stock
shall have the right, voting as a class as described in subparagraph (ii)
below, to elect two directors (in addition to the directors elected by
holders of Common Stock). Such right may be exercised (a) at any meeting of
stockholders for the election of directors or (b) at a meeting of the
holders of shares of Voting Preferred Stock (as hereinafter defined),
called for the purpose in accordance with the By-laws of the Corporation,
until all such cumulative dividends (referred to above) shall have been
paid in full or until non-cumulative dividends have been paid regularly for
at least one year .
(ii) The right of the holders of Series A Preferred Stock to
elect two directors, as described above, shall be exercised as a class
concurrently with the rights of holders of any other series of Preferred
Stock upon which voting rights to elect such directors have been conferred
and are then exercisable. The Series A Preferred Stock and any additional
series of Preferred Stock which the Corporation may issue and which may
provide for the right to vote with the foregoing series of Preferred Stock
are collectively referred to herein as "Voting Preferred Stock."
(iii) Each director elected by the holders of shares of Voting
Preferred Stock shall be referred to herein as a "Preferred Director." A
Preferred Director so elected shall continue to serve as such director for
a term of one year, except that upon any termination of the right of all of
such holders to vote as a class for Preferred Directors, the term of office
of the Preferred Directors shall terminate. Any Preferred Director may be
removed by, and shall not be removed except by, the vote of the holders of
record of a majority of the outstanding shares of Voting Preferred Stock
then entitled to vote for the election of directors, present (in person or
by proxy) and voting together as a single class (a) at a meeting of the
stockholders, or (b) at a meeting of the holders of shares of such Voting
Preferred Stock, called for the purpose in accordance with the By-laws of
the Corporation, or (c) by written consent signed by the holders of a
majority of the then outstanding shares of Voting Preferred Stock then
entitled to vote for the election of directors, taken together as a single
class.
(iv) So long as a default in any preference dividends on the
Series A Preferred Stock shall exist or the holders of any other series of
Voting Preferred Stock shall be entitled to elect Preferred Directors, (a)
any vacancy in the office of a Preferred Director may be filled (except as
provided in the following clause (b)) by an instrument in writing signed by
the remaining Preferred Director and filed with the Corporation and (b) in
the case of the removal of any Preferred Director, the vacancy may be
filled by the vote or written consent of the holders of a majority of the
outstanding shares of Voting Preferred Stock then entitled to vote for the
election of directors, present (in person or by proxy) and voting together
as a single class, at such time as the removal shall be effected. Each
director appointed as aforesaid by the remaining Preferred Director shall
be deemed, for all purposes
-4-
<PAGE>
hereof, to be a Preferred Director. Whenever (x) no default in preference
dividends on the Series A Preferred Stock shall exist and (y) the holders
of other series of Voting Preferred Stock shall no longer be entitled to
elect such Preferred Directors, then the number of directors constituting
the Board of Directors of the Corporation shall be reduced by two.
(v) For purposes hereof, a "default in preference dividends"
on the Series A Preferred Stock shall be deemed to have occurred whenever
the amount of cumulative and unpaid dividends on the Series A Preferred
Stock shall be equivalent to six full quarterly dividends or more (whether
or not consecutive), and, having so occurred, such default shall be deemed
to exist thereafter until, but only until, all cumulative dividends on all
shares of the Series A Preferred Stock then outstanding shall have been
paid through the last Quarterly Dividend Payment Date or until, but only
until, non-cumulative dividends have been paid regularly for at least one
year.
(D) Except as set forth herein (or as otherwise required by
applicable law), holders of Series A Preferred Stock shall have no general
or special voting rights and their consent shall not be required for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Preferred Stock as provided in Section 2 above are
in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for value any
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock; provided, that
the Corporation may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Stock; or
-5-
<PAGE>
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Series A Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment
among the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any shares
of stock of the Corporation unless the Corporation could, under paragraph
(A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the
Certificate of Incorporation, in any other Certificate of Designations creating
a series of Preferred Stock or as otherwise required or permitted by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the prior and superior rights of holders of any shares
of any series of Preferred Stock ranking prior and superior to the shares
of Series A Preferred Stock with respect to rights upon liquidation,
dissolution or winding up (voluntary or otherwise), upon any liquidation,
dissolution or winding up of the Corporation (voluntary or otherwise), no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock unless, prior thereto, the holders of shares
of Series A Preferred Stock shall have received $1,000 per share, plus an
amount equal to accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment (the "Series A
Liquidation Preference"). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series A Preferred Stock unless, prior thereto,
the holders of shares of Common Stock shall have received an amount per
share (the "Capital Adjustment") equal to the quotient obtained by dividing
(i) the Series A Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in paragraph (C) of this Section 6) (such number in
clause (ii) being hereinafter referred to as the "Adjustment Number").
Following the payment of the full amount of the Series A Liquidation
Preference and the Capital Adjustment in respect of all outstanding shares
of Series A Preferred Stock and Common Stock, respectively, holders of
Series A Preferred Stock and holders of Common Stock shall receive their
ratable and proportionate
-6-
<PAGE>
share of the remaining assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if
any, which rank on a parity with the Series A Preferred Stock, then such
remaining assets shall be distributed ratably to the holders of Series A
Preferred Stock and the holders of such parity shares in proportion to
their respective liquidation preferences. In the event, however, that
there are not sufficient assets available to permit payment in full of the
Capital Adjustment, then such remaining assets shall be distributed ratably
to the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare or pay any dividend on the Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. Consolidation, Merger, Combination, etc. In case the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other property, then in any such
case the shares of Series A Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare or pay any dividend on the Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the amount set forth in the preceding sentence with respect to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall
not be redeemable.
Section 9. Ranking. The Series A Preferred Stock shall rank junior to
all other series of the Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the terms of any such series
shall provide otherwise.
-7-
<PAGE>
Section 10. Amendment. At any time that any shares of Series A
Preferred Stock are outstanding, the Certificate of Incorporation shall not be
amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or more
of the outstanding shares of Series A Preferred Stock, voting separately as a
class.
Section 11. Fractional Shares. Series A Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights, to receive dividends, to
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf
of the Corporation by a duly authorized officer this 31st day of March, 1999.
VINTAGE PETROLEUM, INC.
By: /s/ William C. Barnes
---------------------------------
William C. Barnes
Executive Vice President
-8-
<PAGE>
EXHIBIT 4.1
VINTAGE PETROLEUM, INC.
and
THE CHASE MANHATTAN BANK
as Trustee
_______________
Indenture
Dated as of _____ __, ____
_______________
Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY.............................. 1
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined............... 1
SECTION 1.02. Incorporation by Reference of
Trust Indenture Act............... 13
SECTION 1.03. Rules of Construction............... 13
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally..................... 14
SECTION 2.02. Form of Trustee's Certificate of
Authentication.................... 15
SECTION 2.03. Principal Amount; Issuable in
Series............................ 15
SECTION 2.04. Execution of Debt Securities........ 19
SECTION 2.05. Authentication and Delivery of
Debt Securities................... 20
SECTION 2.06. Denomination of Debt Securities..... 22
SECTION 2.07. Registration of Transfer and
Exchange.......................... 22
SECTION 2.08. Temporary Debt Securities........... 24
SECTION 2.09. Mutilated, Destroyed, Lost or
Stolen Debt Securities............ 25
SECTION 2.10. Cancelation of Surrendered Debt
Securities........................ 26
SECTION 2.11. Provisions of the Indenture and
Debt Securities for the Sole
Benefit of the Parties and the
Holders........................... 26
SECTION 2.12. Payment of Interest; Rights
Preserved......................... 27
SECTION 2.13. Securities Denominated in Foreign
Currencies........................ 27
SECTION 2.14. Wire Transfers...................... 28
<PAGE>
ii
Page
----
SECTION 2.15. Securities Issuable in the Form of
a Global Security................. 28
SECTION 2.16. Medium Term Securities.............. 31
SECTION 2.17. Defaulted Interest.................. 32
SECTION 2.18. Judgments........................... 33
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article............ 34
SECTION 3.02. Notice of Redemption; Selection of
Debt Securities................... 34
SECTION 3.03. Payment of Debt Securities Called
for Redemption.................... 36
SECTION 3.04. Mandatory and Optional Sinking
Funds............................. 37
SECTION 3.05. Redemption of Debt Securities for
Sinking Fund...................... 37
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and
Premium, If Any, and Interest
on, Debt Securities............... 40
SECTION 4.02. Maintenance of Offices or Agencies
for Registration of Transfer,
Exchange and Payment of Debt
Securities........................ 40
SECTION 4.03. Appointment to Fill a Vacancy in
the Office of Trustee............. 41
SECTION 4.04. Duties of Paying Agents, etc........ 41
SECTION 4.05. Statement by Officers as to
Default........................... 43
SECTION 4.06. Further Instruments and Acts........ 43
SECTION 4.07. Existence........................... 43
SECTION 4.08. Maintenance of Properties........... 43
SECTION 4.09. Payment of Taxes and Other
Claims............................ 44
<PAGE>
iii
Page
----
ARTICLE V
Holders' Lists and Reports by the Company
-----------------------------------------
and the Trustee
----------------
SECTION 5.01. Company to Furnish Trustee
Information as to Names and
Addresses of Holders;
Preservation of Information........ 44
SECTION 5.02. Communications to Holders............ 45
SECTION 5.03. Reports by Company................... 45
SECTION 5.04. Reports by Trustee................... 45
SECTION 5.05. Record Dates for Action by
Holders............................ 46
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default.................... 46
SECTION 6.02. Collection of Indebtedness by
Trustee, etc....................... 50
SECTION 6.03. Application of Moneys Collected by
Trustee............................ 51
SECTION 6.04. Limitation on Suits by Holders....... 53
SECTION 6.05. Remedies Cumulative; Delay or
Omission in Exercise of Rights
Not a Waiver of Default............ 53
SECTION 6.06. Rights of Holders of Majority in
Principal Amount of Debt
Securities to Direct Trustee and
to Waive Default................... 54
SECTION 6.07. Trustee to Give Notice of Defaults
Known to It, but May Withhold
Such Notice in Certain
Circumstances...................... 55
SECTION 6.08. Requirement of an Undertaking to
Pay Costs in Certain Suits under
the Indenture or Against the
Trustee............................ 55
<PAGE>
iv
Page
----
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and
Responsibilities................... 56
SECTION 7.02. Certain Rights of Trustee............ 57
SECTION 7.03. Trustee Not Liable for Recitals
in Indenture or in Debt
Securities......................... 59
SECTION 7.04. Trustee, Paying Agent or Registrar
May Own Debt Securities............ 59
SECTION 7.05. Moneys Received by Trustee to Be
Held in Trust...................... 60
SECTION 7.06. Compensation and Reimbursement....... 60
SECTION 7.07. Right of Trustee to Rely on an
Officers' Certificate Where No
Other Evidence Specifically
Prescribed......................... 61
SECTION 7.08. Separate Trustee; Replacement of
Trustee............................ 61
SECTION 7.09. Successor Trustee by Merger.......... 63
SECTION 7.10. Eligibility; Disqualification........ 63
SECTION 7.11. Preferential Collection of Claims
Against Company.................... 64
SECTION 7.12. Compliance with Tax Laws............. 64
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders........ 64
SECTION 8.02. Proof of Execution of Instruments
and of Holding of Debt
Securities......................... 65
SECTION 8.03. Who May Be Deemed Owner of Debt
Securities......................... 65
SECTION 8.04. Instruments Executed by Holders
Bind Future Holders................ 66
<PAGE>
v
Page
----
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental
Indenture May Be Entered into
Without Consent of Holders......... 67
SECTION 9.02. Modification of Indenture with
Consent of Holders of Debt
Securities......................... 69
SECTION 9.03. Effect of Supplemental
Indentures......................... 71
SECTION 9.04. Debt Securities May Bear Notation
of Changes by Supplemental
Indentures......................... 71
SECTION 9.05. Payment for Consent.................. 72
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the
Company............................ 72
SECTION 10.02. Rights and Duties of Successor
Corporation.......................... 72
ARTICLE XI
Satisfaction and Discharge of Indenture;
---------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
SECTION 11.01. Applicability of Article............. 73
SECTION 11.02. Satisfaction and Discharge of
Indenture: Defeasance................ 73
SECTION 11.03. Conditions of Defeasance............. 75
SECTION 11.04. Application of Trust Money........... 77
SECTION 11.05. Repayment to Company................. 77
SECTION 11.06. Indemnity for U.S. Government
Obligations.......................... 77
SECTION 11.07. Reinstatement........................ 77
<PAGE>
vi
Page
----
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article;
Agreement to Subordinate........... 78
SECTION 12.02. Liquidation, Dissolution,
Bankruptcy......................... 78
SECTION 12.03. Default on Senior Indebtedness....... 79
SECTION 12.04. Acceleration of Payment of Debt
Securities......................... 80
SECTION 12.05. When Distribution Must Be Paid
Over............................... 80
SECTION 12.06. Subrogation.......................... 81
SECTION 12.07. Relative Rights...................... 81
SECTION 12.08. Subordination May Not Be Impaired
by Company......................... 81
SECTION 12.09. Rights of Trustee and Paying
Agent.............................. 81
SECTION 12.10. Distribution or Notice to
Representative..................... 82
SECTION 12.11. Article XII Not to Prevent Defaults
or Limit Right to Accelerate....... 82
SECTION 12.12. Trust Moneys Not Subordinated........ 82
SECTION 12.13. Trustee Entitled to Rely............. 82
SECTION 12.14. Trustee to Effectuate
Subordination...................... 83
SECTION 12.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness............. 83
SECTION 12.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions......................... 84
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company
Bound by Indenture................. 84
SECTION 13.02. Acts of Board, Committee or
Officer of Successor Company Valid. 84
SECTION 13.03. Required Notices or Demands.......... 84
SECTION 13.04. Indenture and Debt Securities to
Be Construed in Accordance with the
Laws of the State of New York...... 85
<PAGE>
vii
Page
----
SECTION 13.05. Officers' Certificate and Opinion
of Counsel to Be Furnished upon
Application or Demand by the
Company............................ 85
SECTION 13.06. Payments Due on Legal Holidays....... 86
SECTION 13.07. Provisions Required by Trust
Indenture Act to Control............. 86
SECTION 13.08. Computation of Interest on Debt
Securities........................... 87
SECTION 13.09. Rules by Trustee, Paying Agent and
Registrar............................ 87
SECTION 13.10. No Recourse Against Others........... 87
SECTION 13.11. Severability......................... 87
SECTION 13.12. Effect of Headings................... 87
SECTION 13.13. Indenture May Be Executed in
Counterparts......................... 87
SIGNATURES ............................................ 88
<PAGE>
viii
VINTAGE PETROLEUM, INC.
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
Indenture
TIA Section Section
----------- -----------
310 (a)(1) ................................... 7.10
(a)(2) ................................... 7.10
(a)(3) ................................... 7.10
(a)(5) ................................... 7.10
(b) ................................... 7.10
(c) ................................... N.A.**
311 (a) ................................... 7.11
(b) ................................... 7.11
(c) ................................... N.A.
312 (a) ................................... 5.01
(b) ................................... 5.02
(c) ................................... 5.02
313 (a) ................................... 5.04
(b)(1) ................................... 5.04
(b)(2) ................................... 5.04
(c) ................................... 12.03
(d) ................................... 5.04
314 (a)(1) ................................... 5.03(a)
(a)(2) ................................... 5.03(b)
(a)(3) ................................... 5.03(a)&(b)
& 12.03
(a)(4) ................................... 5.04
(b) ................................... N.A.
(c)(1) ................................... 12.05
(c)(2) ................................... 12.05
(c)(3) ................................... N.A.
(d) ................................... N.A.
(e) ................................... 12.05
(f) ................................... 4.06
315 (a) ................................... 7.01(a)
<PAGE>
(b) ................................... 6.07 &
12.03
(c) ................................... 7.01
(d) ................................... 7.01
(e) ................................... 6.08
316 (a)(last sentence)......................... 1.01
(a)(1)(A).................................. 6.06
(a)(1)(B).................................. 6.06
(a)(2) ................................... 9.01(d)
(b) ................................... 6.04
(c) ................................... 5.05
317 (a)(1) ................................... 6.02
(a)(2) ................................... 6.02
(b) ................................... 4.04
318 (a) ................................... 12.07
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
<PAGE>
INDENTURE dated as of , ____, between VINTAGE
PETROLEUM, INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes called
the "Company"), and The Chase Manhattan Bank, a New York banking
corporation (hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined. The terms defined in this
----------------------
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the
<PAGE>
2
Securities Act as in force as of the date of original execution of this
Indenture.
"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 the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Bank Indebtedness" means any and all amounts payable under or in
-----------------
respect of (i) the Credit Agreement, as supplemented, amended, modified,
refinanced or replaced at any time from time to time, and (ii) any lines of
credit and letters of credit of the Company, in each case, including principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.
"Banks" has the meaning specified in the Credit Agreement.
-----
"Board of Directors" means either the Board of Directors of the
------------------
Company or any duly authorized committee or subcommittee of such Board, except
as the context may otherwise require.
"business day" means any day that is not a Saturday, a Sunday or legal
------------
holiday and, with respect to any Place of Payment specified pursuant to Section
2.03, any other day on which banking institutions or trust companies in such
Place of Payment are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means an obligation that is required to
----------------------------
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP; and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such
<PAGE>
3
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Common Stock" means the common stock ($0.005 par value), of the
------------
Company, which stock is currently listed on the New York Stock Exchange.
"Company" means Vintage Petroleum, Inc., a Delaware corporation, and,
-------
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its
-------------
Chairman of the Board, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"corporate trust office of the Trustee" or other similar term means
-------------------------------------
the office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States
of America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which at any particular time its corporate
agency business shall be conducted.
"Credit Agreement" means the Amended and Restated Credit Agreement
----------------
dated as of October 21, 1998, among the Company and certain of its subsidiaries,
each as a Borrower, and the Banks party thereto, as supplemented, amended,
modified, refinanced or replaced at any time from time to time.
"Currency" means Dollars or Foreign Currency.
--------
"Debt Security" or "Debt Securities" has the meaning stated in the
------------- ---------------
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
<PAGE>
4
"Debt Security Register" has the meaning specified in Section 2.07(a).
----------------------
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
----------
to either Section 2.03 or 2.15, with respect to registered Debt Securities of
any series issuable or issued in whole or in part in the form of one or more
Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
------------------------------
(ii) any other Senior Indebtedness.
"Disqualified Stock" of a Person means Redeemable Stock of such Person
------------------
as to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the first anniversary of the Stated Maturity of the Debt Securities of the
applicable series.
"Dollar" or "$" means such currency of the United States as at the
------ -
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
-----------------
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by The Chase Manhattan Bank (unless
another comparable financial institution is designated by the Company) in New
York, New York at approximately 11:00 a.m. (New York time) on the date two
business days prior to such determination.
"Event of Default" has the meaning specified in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Floating Rate Security" means a Debt Security that provides for the
----------------------
payment of interest at a variable rate determined periodically by reference to
an interest rate index or formula specified pursuant to Section 2.03.
<PAGE>
5
"Foreign Currency" means a currency issued or adopted by the
----------------
government of any country other than the United States or a composite currency
the value of which is determined by reference to the values of the currencies of
any group of countries.
"GAAP" means generally accepted accounting principles in the United
----
States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"Global Security" means, with respect to any series of Debt Securities
---------------
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
- -------- -------
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
<PAGE>
6
"Holder," "Holder of Debt Securities" or other similar terms mean,
------ -------------------------
with respect to a Registered Security, the Registered Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become
-----
liable for; provided, however, that any Indebtedness or Capital Stock of a
-------- -------
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
------------
determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (i) through (iv) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third business day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit;
(vi) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser
-------- -------
of (A) the fair market value of such asset at such date of determination or
(B) the amount of such Indebtedness of such other Persons; and
<PAGE>
7
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
-------- -------
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Indenture" means this instrument as originally executed, or, if
---------
amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Issue Date" means, with respect to any series of Debt Securities, the
----------
date upon which such Debt Securities first were issued and authenticated under
this Indenture and any Indenture supplemental hereto.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, the President or any Vice President and by the Treasurer, chief
accounting officer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
------------------
counsel for the Company (which counsel may be an employee of the Company), or
outside counsel for the Company. Each such opinion shall include the statements
provided for in Section 13.05, if applicable.
<PAGE>
8
"Original Issue Discount Debt Security" means any Debt Security which
-------------------------------------
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration or acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding" when used with respect to any series of Debt Securities,
-----------
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
paying agent) for the holders of such Debt Securities; provided, that, if
--------
such Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt Securities
are held by a bona fide purchaser in whose hands such Debt Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor.
<PAGE>
9
In determining whether the Holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Debt Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.01. In determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities of
any series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Debt Security denominated
in one or more Foreign Currencies that shall be deemed to be Outstanding for
such purposes shall be the Dollar Equivalent, determined in the manner provided
as contemplated by Section 2.03 on the date of original issuance of such Debt
Security, of the principal amount (or, in the case of any Original Issue
Discount Security, the Dollar Equivalent on the date of original issuance of
such Debt Security of the amount determined as provided in the preceding
sentence above) of such Debt Security.
"pari passu", as applied to the ranking of any Indebtedness of a
----------
Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"Person" means any individual, corporation, partnership, joint
------
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
----------------
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are payable
as specified pursuant to Section 2.03.
<PAGE>
10
"Preferred Stock" as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Redeemable Stock" means, with respect to any Person, any Capital
----------------
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part.
"Registered Holder" means the Person in whose name a Registered
-----------------
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
-------------------
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
---------
"Representative" means the trustee, agent or representative (if any)
--------------
for an issue of Indebtedness.
"responsible officer" means, when used with respect to the Trustee,
-------------------
any officer within the corporate trust office of the Trustee, including, the
President, any Vice President, any Second Vice President, any Assistant Vice
President, the Secretary, any senior trust officer, any
<PAGE>
11
trust officer or any other officer of the Trustee performing functions similar
to those performed by the persons who at the time shall be such officers, and
any other officer of the Trustee to whom corporate trust matters are referred
because of his knowledge of and familiarity with the particular subject.
"Secured Indebtedness" means any Indebtedness of the Company secured
--------------------
by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Senior Indebtedness" means, as to any series of Debt Securities
-------------------
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to subordination, of such series.
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation, association,
----------
partnership 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 (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
--------------------------
investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United
<PAGE>
12
States, any State thereof or any foreign country recognized by the United States
having capital, surplus and undivided profits aggregating in excess of
$500,000,000 (or the Dollar Equivalent thereof) and whose long-term debt is
rated "A" or higher according to Moody's Investors Service, Inc. (or such
similar equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act)), (iii)
repurchase obligations with a term of not more than 7 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above and (iv) investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States or any foreign
country recognized by the United States with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Moody's
Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's
Corporation.
"Trade Payables" means, with respect to any Person, any accounts
--------------
payable or any Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trustee" initially means The Chase Manhattan Bank and any other
-------
Person or Persons appointed as such from time to time pursuant to Section 7.08,
and, subject to the provisions of Article VII, includes its or their successors
and assigns. If at any time there is more than one such Person, "Trustee" as
used with respect to the Debt Securities of any series shall mean the Trustee
with respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided)
-------------------
means the Trust Indenture Act of 1939 as in force at the date of this indenture
as originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised by and
<PAGE>
13
acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof.
"Yield to Maturity" means the yield to maturity calculated at the time
-----------------
of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
--------------------
"indenture security holder" means a Holder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company and any other
-------
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
<PAGE>
14
(5) words in the singular include the plural and words in the plural
include the singular;
(6) if the applicable series of Debt Securities are subordinated
pursuant to Article XII, unsecured indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured indebtedness;
(7) except as otherwise provided in the definition of "Outstanding"
contained in Section 1.01 hereunder, the principal amount of any
noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally. The Debt Securities of each series
----------------
shall be in substantially the form established without the approval of any
Holder by or pursuant to a resolution of the Board of Directors or in one or
more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required or appropriate to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange on which such series of Debt Securities may be listed, or to
conform to general usage, or as may, consistently herewith, be
<PAGE>
15
determined by the officers executing such Debt Securities as evidenced by their
execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------
As Trustee
By
-----------------------------
Authorized Officer
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
-------------------------------------
principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established, without the approval of any Holders, in or pursuant to a
resolution of the Board of Directors and set forth in an Officers' Certificate,
or established in one or more Indentures supplemental hereto, prior to the
issuance of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
<PAGE>
16
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, in the case
of Registered Securities, the record dates for the determination of Holders
thereof to whom such interest is payable; and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve thirty-
day months;
(5) the Place or Places of Payment, if any, in addition to or instead
of the corporate trust office of the Trustee where the principal of, and
interest on, Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(8) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities or
warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor or issuer and
the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the
conversion or exchange period and any other provision in addition to or in
lieu of those described herein;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
<PAGE>
17
(10) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(11) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be Outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(12) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of and premium, if any, and
interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this Indenture as
currently in effect;
<PAGE>
18
(16) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of and interest on, such
Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, in addition to or in lieu of the terms and conditions
set forth in Section 2.15(c), upon which such Global Security or Securities
may be exchanged in whole or in part for other individual Debt Securities
in definitive registered form; and the Depositary for such Global Security
or Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
(18) any trustees, authenticating or paying agents, transfer agents or
registrars;
(19) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X upon the satisfaction
of an Indebtedness coverage standard by the Company and Successor Company
(as defined in Article X);
(20) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and
any corresponding changes to the provisions of this Indenture as currently
in effect;
(21) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII with
respect to such Debt Securities;
(22) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(23) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
<PAGE>
19
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set
forth in such Officers' Certificate or in any such Indenture supplemental
hereto.
Unless otherwise expressly provided with respect to a series of Debt
Securities, the aggregate principal amount of a series of Debt Securities may be
increased by or pursuant to a resolution of the Board of Directors and
additional Debt Securities of such series may be issued up to the increased
maximum aggregate principal amount so authorized.
SECTION 2.04. Execution of Debt Securities. The Debt Securities
-----------------------------
shall be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President and by its Secretary, an Assistant
Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt
Securities may be the manual or facsimile signatures of the present or any
future such authorized officers and may be imprinted or otherwise reproduced on
the Debt Securities. The seal of the Company, if any, may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed manually
by an authorized officer of the Trustee, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Debt Security executed by the Company shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of such Debt Security or of the execution of this Indenture
any such Person was not such officer.
<PAGE>
20
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
----------------------------------- -----------
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities of any series executed by the Company to
the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debt Securities pursuant to a Company Order. In authenticating
such Debt Securities and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01.) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance of the series of Debt Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate prepared pursuant to Section 13.05 and,
if applicable, pursuant to Sections 2.03 and 9.03; and
(4) an opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(a) that the form of such Debt Securities has been established by
or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established
by or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.03 in conformity with
the provisions of this Indenture, and, in the case of the issuance of
Debt Securities pursuant to Section 2.16, the terms of such Debt
Securities that have been established by or pursuant to a resolution
of the Board of Directors or by a supplemental Indenture have been
established as permitted by Section 2.03 in conformity with the
provisions of the Indenture and, when such other terms as are to be
established pursuant to procedures set forth in a Company Order or
pursuant to such other procedures as shall have been provided for with
respect to such Debt Securities shall have been established,
<PAGE>
21
all such terms will have been established in conformity with the
provisions of this Indenture ;
(c) that such Debt Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors' rights generally and
(ii)general principles of equity, whether such principles are
considered in a proceeding at law or in equity;
(d) that the Company has the corporate power to issue such Debt
Securities and has duly taken all necessary corporate action with
respect to such issuance;
(e) that the issuance of such Debt Securities will not contravene
the charter or by-laws of the Company or result in any material
violation of any of the terms or provisions of any law or regulation
or of any indenture, mortgage or other agreement known to such counsel
by which the Company is bound;
(f) that authentication and delivery of such Debt Securities and
the execution and delivery of any supplemental Indenture will not
violate the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would adversely affect the
<PAGE>
22
Trustee's rights, duties, obligations or immunities under this Indenture in a
manner which is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities of any series. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
--------------------------------
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange. (a) The
--------------------------------------
Company shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfer or exchange of Registered Securities
as in this Article II provided. At all reasonable times the Debt Security
Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Registered Security at
any office or agency to be maintained by the Company in accordance with the
provisions of Section 4.02, the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series, for a like
aggregate principal amount and tenor, in authorized denominations.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration,
<PAGE>
23
exchange or registration of transfer of the Registered Securities shall be kept
at the corporate trust office of the Trustee and, for this purpose, the Trustee
shall be designated "Registrar".
Registered Securities of any series (other than a Global Security) may
be exchanged for a like aggregate principal amount and tenor of Registered
Securities of the same series of other authorized denominations. Subject to
Section 2.15, Registered Securities to be exchanged shall be surrendered at the
office or agency to be maintained by the Company as provided in Section 4.02,
and the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Registered Security or Registered Securities which the
Holder making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days next preceding any
mailing of notice of redemption of Debt Securities of such series or (b) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption in whole or in part, except, in the case of Debt
Securities to be redeemed in part, the portion thereof not to be so redeemed.
<PAGE>
24
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and (subject to Section 2.12(a)) interest on, such Debt
Security and for all other purposes whatsoever, whether or not such Debt
Security is overdue, and none of the Company, the Trustee, any paying agent or
Registrar shall be affected by notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying
agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
--------------------------
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities,
all as may be determined by the Company with the concurrence of the Trustee.
Temporary Debt Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Debt Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer, and upon surrender for
cancelation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall
<PAGE>
25
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of
like tenor. Until so exchanged, temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by
Section 2.03(17) with respect to the payment of interest on Global Securities in
temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee at its
corporate trust office or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any paying agent harmless, and
neither the Company nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser, then the Company shall execute and, upon
a Company Order, the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new
Debt Security of the same series of like tenor, form, terms and principal
amount, bearing a number not contemporaneously Outstanding. Upon the issuance
of any substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debt
Security which has matured or is about to mature or which has been called for
redemption shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substituted Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish the Company and
the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of
<PAGE>
26
the Company and the Trustee of the destruction, loss or theft of such Debt
Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10. Cancelation of Surrendered Debt Securities. All Debt
------------------------------- -----------
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancelation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be disposed
of by the Trustee in accordance with its customary procedures, and certification
by the Trustee of their disposition shall be delivered to the Company, unless
otherwise directed. On request of the Company, the Trustee shall deliver to the
Company canceled Debt Securities held by the Trustee. If the Company shall
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented thereby unless
and until the same are delivered or surrendered to the Trustee for cancelation.
The Company may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancelation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
-------------------------------------------------------
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
- --------------------------------------------
the Debt Securities, expressed or implied, shall give or be construed to give to
any Person, other than the parties hereto, the Holders or any Registrar or
paying agent or the holders of
<PAGE>
27
Senior Indebtedness, if any, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto, the Holders and any Registrar and paying
agents and the holders of Senior Indebtedness, if any.
SECTION 2.12. Payment of Interest; Rights Preserved. (a) Interest
--------------------------------------
on any Registered Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Person in whose
name such Registered Security is registered at the close of business on the
regular record date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Registered Securities shall be made at the
corporate trust office of the Trustee (except as otherwise specified pursuant to
Section 2.03), or at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies. (a)
--------------------------------- -----------
Except as otherwise specified pursuant to Section 2.03 for Registered Securities
of any series, payment of the principal of, and premium, if any, and interest
on, Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies for any purpose under this Indenture, the principal
amount of such Debt Securities at any time Outstanding shall be deemed to be the
Dollar Equivalent of such principal amount as of the date of any such
calculation.
<PAGE>
28
In the event any Foreign Currency or currencies or units of two or
more Currencies in which any payment with respect to any series of Debt
Securities may be made ceases to be a freely convertible Currency on United
States Currency markets, for any date thereafter on which payment of principal
of, or premium, if any, or interest on, the Debt Securities of a series is due,
the Company shall select the Currency of payment for use on such date, all as
provided in the Debt Securities of such series. In such event, the Company
shall, as provided in the Debt Securities of such series, notify the Trustee of
the Currency which it has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to
---------------
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer of immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
-----------------------------------------------------
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 2.05, authenticate
and deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers' Certificate or Company Order, (ii) shall be registered in the name
of the Depositary for such Global Security or securities or its nominee, (iii)
shall be delivered by the Trustee or its agent to the Depositary or pursuant to
the Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented hereby,
<PAGE>
29
this Global Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary", or
such other legend as may then be required by the Depositary for such Global
Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a
<PAGE>
30
Company Order for the authentication and delivery of individual Debt Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Debt Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such series or portion thereof in exchange for such Global
Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Debt Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose names
such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt
Securities registered in the name of
<PAGE>
31
the Depositary or its nominee will be payable to the Depositary or such nominee
in its capacity as the registered owner of such Global Security. The Company and
the Trustee may treat the Person in whose name the Debt Securities, including
the Global Security, are registered as the owner thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever. None of
the Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for (a) any
aspect of the records relating to or payments made on account of the beneficial
ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositary's direct or indirect participants, or for maintaining,
supervising or reviewing any records of the Depositary, its nominee or any of
its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, (b) the payments to the beneficial owners of
the Global Security of amounts paid to the Depositary or its nominee, or (c) any
other matter relating to the actions and practices of the Depositary, its
nominee or any of its direct or indirect participants. None of the Company, the
Trustee or any such agent will be liable for any delay by the Depositary, its
nominee, or any of its direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Company and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
-----------------------
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
--------
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
<PAGE>
32
authentication upon original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the
telephonic, electronic or written order of Persons designated in such written
order (any such telephonic or electronic instructions to be promptly confirmed
in writing by such Person) and that such Persons are authorized to determine,
consistent with the Officers' Certificate, supplemental Indenture or resolution
of the Board of Directors relating to such written order, such terms and
conditions of such Debt Securities as are specified in such Officers'
Certificate, supplemental Indenture or such resolution.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security
-------------------
of a particular series which is payable, but is not punctually paid or duly
provided for, on the dates and in the manner provided in the Debt Securities of
such series and in this Indenture (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Registered Holder thereof on the relevant
record date by virtue of having been such Registered Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner: The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this
<PAGE>
33
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage prepaid,
to each Holder thereof at its address as it appears in the Debt Security
Register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record
date therefor having been so mailed, such Defaulted interest shall be paid
to the Persons in whose names the Registered Securities of such series are
registered at the close of business on such special record date.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.18. Judgments. The Company may provide pursuant to Section
----------
2.03 for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost exchange) on the business day in the
country of
<PAGE>
34
issue of the Designated Currency or in the international banking community (in
the case of a composite currency) immediately following the day on which such
Holder receives such payment; (c) if the amount in the Designated Currency that
may be so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In
---------------------------------------------------
case the Company shall desire to exercise the right to redeem all or any part of
the Debt Securities of any series, as the case may be, in accordance with their
terms, the Company shall fix a date for redemption and shall give notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the Holders of Debt Securities of such series so to be redeemed as
a whole or in part, in the manner provided in Section 13.03. The notice if
given in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any
Debt Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other Debt
Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Debt Securities of such series are to
be redeemed, the Place or Places of Payment that payment will be made upon
presentation and surrender of such Debt Securities, that any interest accrued to
the date fixed for redemption will be paid as specified in said notice, that the
redemption is for a sinking fund payment (if applicable), that, if the Company
defaults on making such redemption payment or if the Debt
<PAGE>
35
Securities of that series are subordinated pursuant to the terms of Article XII
the paying agent is prohibited from making such payment pursuant to the terms of
this Indenture, that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue, that in the case of
Original Issue Discount Securities original issue discount accrued after the
date fixed for redemption will cease to accrue, the provision of the Debt
Securities of that series pursuant to which the Debt Securities of that series
are being redeemed, the CUSIP numbers of the Debt Securities of that series
being redeemed and that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice or printed on the Debt
Securities of that series. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof will be authenticated and delivered in exchange for
the unredeemed portion of the principal of the Debt Security so surrendered.
At least 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price of such Registered Securities or any portions thereof that are to be
redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions), the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in authorized denominations) to be redeemed. In any case
where more than one Registered
<PAGE>
36
Security of such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If
-------------------------------------------------
notice of redemption has been given as provided in Section 3.02, the Debt
Securities or portions of Debt Securities of the series with respect to which
such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Debt Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue and any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office of the Trustee or such other office or
agency of the Company as is specified pursuant to Section 2.03, with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee
<PAGE>
37
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered; except that if a
Global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Debt Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum
-------------------------------------
amount of any sinking fund payment provided for by the terms of Debt Securities
of any series, resolution of the Board of Directors or a supplemental Indenture
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased or otherwise acquired by the Company or (b) receive credit
for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Company pursuant to the terms of such
Debt Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
--------
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not
-----------------------------------------------
less than 60 days prior to each sinking
<PAGE>
38
fund payment date for any series of Debt Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate), the basis for such credit and that such Debt
Securities have not been previously so credited and whether the Company intends
to exercise its right to make any permitted optional sinking fund payment with
respect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company
to deliver such certificate (or to deliver the Debt Securities specified in this
paragraph) shall not constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking fund payment date
for that series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and,
<PAGE>
39
together with such payment, shall be applied in accordance with the provisions
of this Section 3.05. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee on the last sinking fund
payment date with respect to Debt Securities of such series and not held for the
payment or redemption of particular Debt Securities shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Debt Securities of that
series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the
<PAGE>
40
continuance of such Default or Event of Default, be held as security for the
payment of the Debt Securities of such series; provided, however, that in case
-------- -------
such Event of Default or Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking fund payment
date for such Debt Securities on which such moneys may be applied pursuant to
the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
-------------------------------------------------
Interest on, Debt Securities. The Company, for the benefit of each series of
- -----------------------------
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities at the
place, at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a) or, if provided
pursuant to Section 2.03 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) all principal, premium and interest then due
and, in the case of Debt Securities subordinated pursuant to the terms of
Article XII, the Trustee or such paying agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of the Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
------------------------------------------------------
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
- --------------------------------------------------
each Place of
<PAGE>
41
Payment for any series of Debt Securities, an office or agency where Debt
Securities of such series may be presented or surrendered for payment, where
Debt Securities of such series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities of such series and this Indenture may be served. The Company
will 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, and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
------------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.08, a Trustee, so
that there shall at all times be a Trustee hereunder with respect to each series
of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall
-----------------------------
cause each paying agent, if any, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the Holders of the Debt Securities of such series;
<PAGE>
42
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest on,
the Debt Securities of such series when the same shall be due and payable;
and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest, if
any, on, the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Company will promptly notify the Trustee of any failure by the Company to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such paying agent.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.
<PAGE>
43
SECTION 4.05. Statement by Officers as to Default. The Company will
------------------------------------
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate, one of the signatories
of which shall be the Company's principal executive officer, principal
accounting officer or principal financial officer, stating, as to each officer
signing such certificate, that (i) in the course of his performance of his
duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Further Instruments and Acts. The Company will, upon
-----------------------------
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 4.07. Existence. Subject to Article X, the Company will do
----------
or cause to be done all, things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided, however, that
-------- -------
the Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 4.08. Maintenance of Properties. The Company will cause all
--------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
in all material respects and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on by the
Company and its subsidiaries may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the Company
-------- -------
or a Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, not
materially detrimental to the conduct of the business of the Company and its
Subsidiaries,
<PAGE>
44
taken as a whole, and not disadvantageous in any material respect to the
Holders.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will pay
----------------------------------
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Company or any Subsidiary, provided, however, that the Company
-------- -------
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
ARTICLE V
Holders' Lists and Reports
--------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. Company to Furnish Trustee Information as to Names and
------------------------------------------------------
Addresses of Holders; Preservation of Information. The Company covenants and
- --------------------------------------------------
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list as of
a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
- -------- -------
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01
<PAGE>
45
or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate
--------------------------
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and
-------------------
agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee, within 15 days after the Company or such obligor, as the case may be,
is required to file the same with the Securities and Exchange Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company or such obligor,
as the case may be, may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such
obligor, as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
said Commission, in accordance with rules and regulations prescribed from time
to time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents, and reports
with respect to compliance by the Company or such obligor, as the case may be,
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
SECTION 5.04. Reports by Trustee. Within 60 days after May 15 of
-------------------
each year commencing with the first May 15
<PAGE>
46
after the first issuance of Debt Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 if required by Section 313(a) of the Trust Indenture Act.
The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company
-----------------------------------
shall solicit from the Holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company may,
at its option, by resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed,
such action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default. If any one or more of the following
------------------
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) Default in the payment of any installment of interest upon any
Debt Securities of that series as and when the same shall become due and
payable, whether or
<PAGE>
47
not such payment shall be prohibited by Article XII, if applicable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become due
and payable, whether at maturity, upon redemption, by declaration, upon
required repurchase or otherwise, whether or not such payment shall be
prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due
and payable; or
(d) failure on the part of the Company to comply with Article X; or
(e) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the Board of Directors
authorizing the issuance of that series of Debt Securities, in this
Indenture with respect to such series or in any supplemental Indenture with
respect to such series (other than a covenant a default in the performance
of which is elsewhere in this Section specifically dealt with), continuing
for a period of 60 days after the date on which written notice, specifying
such failure, requiring the Company to remedy the same and stating that
such written notice is a "Notice of Default" hereunder, shall have been
given by registered or certified mail to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the Company is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total amount
of such Indebtedness unpaid or accelerated exceeds $40,000,000 or its
Dollar Equivalent at the time and such default remains uncured or such
acceleration is not rescinded for 10 days after the date on which written
notice specifying such failure and requiring the Company to remedy the same
shall have been given, by registered or certified mail, to the Company by
the
<PAGE>
48
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Debt Securities of that series at the
time Outstanding; or
(g) the Company shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) consent
to the institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or for
a substantial part of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) admit in
writing its inability or fail generally to pay its debts as they become
due, (vii) take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency; or
(h) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company or a
substantial part of its property under Title 11 or the United States Code
or any other Federal or State bankruptcy, insolvency or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or for a substantial part of its property, or
(iii) the winding-up or liquidation of the Company; and such order or
decree shall continue unstayed and in effect for 60 consecutive days; or
any similar relief is granted under any foreign laws and the order or
decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company
<PAGE>
49
(and to the Trustee if given by Holders), may declare the principal of (or, if
the Debt Securities of that series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the terms of that
series) and interest on all the Debt Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration and if the Company shall have paid or deposited with the
Trustee a sum sufficient to pay all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel. Upon any such rescission, the parties
hereto shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the parties hereto shall
continue as though no proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (g), (h) or (i),
<PAGE>
50
its status and what action the Company is taking or proposes to take with
respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an
-------------------------------------------
Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid or enforce the performance of any provision of the Debt Securities of
the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
of any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive
<PAGE>
51
any moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of such Holders and
of the Trustee on their behalf, and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of such Holders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to such Holders, to pay to the Trustee such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other reasonable expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, of any series, may be enforced by the Trustee
without the possession of any such Debt Securities or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
-------------------------------------------
or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
First: To the payment of all money due the Trustee pursuant to
-----
Section 7.06;
<PAGE>
52
Second: As provided in Article XII, if applicable;
------
Third: In case the principal of the Outstanding Debt Securities in
-----
respect of which such moneys have been collected shall not have become due,
to the payment of interest on the Debt Securities of such series in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
Fourth: In case the principal of the Outstanding Debt Securities in
------
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities of such series for principal and premium,
if any, and interest, with interest on the overdue principal and premium,
if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne by
the Debt Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security of such series over any
Debt Security of such series, ratably to the aggregate of such principal
and premium, if any, and interest; and
Fifth: The remainder, if any, shall be paid to the Company, its
-----
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
<PAGE>
53
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
-------------------------------
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt
Security on or after the respective due dates expressed in such Debt Security,
and to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
-----------------------------------------------------
Rights Not a Waiver of Default. All powers and remedies given by this Article
- -------------------------------
VI to the Trustee or to the Holders shall, to the extent permitted by law, be
<PAGE>
54
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
----------------------------------------------------
Debt Securities to Direct Trustee and to Waive Default. The Holders of a
- -------------------------------------------------------
majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding shall have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of such series; provided, however, that such direction shall not be
-------- -------
otherwise than in accordance with law and the provisions of this Indenture, and
that subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided further, however, that nothing in this Indenture contained shall
---------------- -------
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. The Holders
of a majority in aggregate principal amount of the Debt Securities of that
series at the time Outstanding may on behalf of the Holders of all the Debt
Securities of that series waive any past Default or Event of Default and its
consequences for that series specified in the terms thereof as contemplated by
Section 2.03, except (i) a Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities and (ii) a Default
in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected thereby. In case of any such waiver, such
Default shall cease to exist, any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this
<PAGE>
55
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
-------------------------------------------------------
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
- ----------------------------------------------
days after the occurrence of a Default known to it with respect to a series of
Debt Securities give to the Holders thereof, in the manner provided in Section
13.03, notice of all Defaults with respect to such series known to the Trustee,
unless such Defaults shall have been cured or waived before the giving of such
notice; provided that, except in the case of Default in the payment of the
--------
principal of, or premium, if any, or interest on, any of the Debt Securities of
such series or in the making of any sinking fund payment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a committee of directors or responsible officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
-----------------------------------------------------
Suits under the Indenture or Against the Trustee. All parties to this Indenture
- -------------------------------------------------
agree, and each Holder of any Debt Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, 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 Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent in principal amount of
the Outstanding Debt Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, or premium, if
any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
<PAGE>
56
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities. The Trustee,
------------------------------------
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to
such series shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished
<PAGE>
57
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture; but the Trustee shall examine the evidence furnished to it
pursuant to Section 5.03 to determine whether or not such evidence
conforms to the requirement of this Indenture;
(c) the Trustee shall not be liable for an error of judgment made in
good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series; and
(e) none of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
<PAGE>
58
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities of any series pursuant
to the provisions of this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be Incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval or
other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then outstanding
Debt Securities of a series affected by such matter; provided, however,
-------- -------
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be Incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of
every such investigation shall be
<PAGE>
59
paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder; and
(h) if any property other then cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized
by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such Lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
-------------------------------------------------------
Securities. The recitals contained herein and in the Debt Securities (except
- -----------
the Trustee's certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Debt Securities and perform its obligations
hereunder, and that the statements made by it or to be made by it in a Statement
of Eligibility and Qualification on Form T-1 supplied to the Company are true
and accurate. The Trustee shall not be accountable for the use or application
by the Company of any of the Debt Securities or of the proceeds thereof. The
Trustee shall not be charged with knowledge of any Default or Event of Default
hereunder unless an officer of the Trustee assigned to and working in its
corporate trust office shall have actual knowledge thereof or unless notice
thereof shall have been given to the Trustee in accordance with Section 13.03 by
the Company or any Holder.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
-----------------------------------------------
Securities. The Trustee or any paying agent or Registrar, in its individual or
- -----------
any other capacity, may become the owner or pledgee of Debt Securities and
subject to the provisions of the Trust Indenture Act relating to conflicts of
interest and preferential claims may otherwise
<PAGE>
60
deal with the Company with the same rights it would have if it were not Trustee,
paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.
-----------------------------------------------
Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company upon a Company
Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
-------------------------------
and agrees to pay in Dollars to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, wilful misconduct or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.
<PAGE>
61
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
----------------------------------------------------
Where No Other Evidence Specifically Prescribed. Except as otherwise provided
- ------------------------------------------------
in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
-----------------------------------------
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series and
(where so removed by such Holders) such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the
<PAGE>
62
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of this
Section 7.08.
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 Debt Securities of each applicable series. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series who has been a bona fide Holder of such Debt
Securities for at least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more but not all series,
the Company, any retiring Trustee and each successor or separate Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (1) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with
<PAGE>
63
respect to the Debt Securities of any series as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee and
(2) that shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental Indenture shall constitute such Trustees co-trustees of the
same trust and that each such separate, retiring or successor Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee; provided,
--------
that it is qualified and eligible hereunder.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000,
as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee upon the Debt Securities of such series. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof; provided, however, that there shall be excluded
-------- -------
from the operation of Section
<PAGE>
64
310(b)(1) of the Trust Indenture Act this Indenture or any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding (including the
Indenture dated as of December 20, 1995, between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), under which the Company's 9%
Senior Subordinated Notes Due 2005 were issued and are outstanding, the
Indenture dated as of February 5, 1997, between the Company and The Chase
Manhattan Bank, under which the Company's 8-5/8% Senior Subordinated Notes Due
2009 were issued and are outstanding, and the Indenture dated as of January 26,
1999, between the Company and The Chase Manhattan Bank, under which the
Company's 9-3/4% Senior Subordinated Notes due 2009 were issued and are
outstanding) if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
--------------------------------------------------
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act.
A Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
-------------------------
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders. Whenever in this
------------------------------
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any
<PAGE>
65
meeting of Holders duly called and held in accordance with the provisions of
Section 13.09 or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
- ----------------
proof of the execution of any instrument by a Holder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
The ownership of Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
The Trustee may require such additional proof of any matter referred
to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to
-------------------------------------------
due presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Sections
2.12 and 2.17) interest on such Registered Security and for all other purposes,
and neither the Company nor the Trustee nor any paying agent nor any Registrar
shall be affected by any notice to the contrary; and all such payments so made
to any such Holder for the time being, or upon his order, shall be valid and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
<PAGE>
66
SECTION 8.04. Instruments Executed by Holders Bind Future Holders.
----------------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action
taken by the Holder of any Debt Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Debt Security and of
any Debt Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or such other Debt Securities. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
<PAGE>
67
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May Be
------------------------------------------------
Entered into Without Consent of Holders. The Company, when authorized by a
- ----------------------------------------
resolution of the Board of Directors, and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the Debt
Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
all or any series of Debt Securities (and if such covenants are to be for
the benefit of less than all series of Debt Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) as the Board of Directors shall consider to be for the protection
of the Holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture; provided, that in respect of any such
--------
additional covenant, restriction, condition or provision such supplemental
Indenture may provide for a particular period of grace after Default (which
period may be shorter or longer than that allowed in the case of other
Defaults) or may provide for an immediate enforcement upon such Default or
may limit the remedies available to the Trustee upon such Default or may
limit the right of the Holders of a majority in aggregate principal amount
of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities
of any
<PAGE>
68
series that may be defective or inconsistent with any other provision
contained herein, in any supplemental Indenture or in the Debt Securities
of such series; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under this Indenture as shall not adversely
affect the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, or interest on, Registered Securities; provided, that any
--------
such action shall not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect; or permit or facilitate
the issuance of Debt Securities of any series in uncertificated form;
(f) in the case of any Debt Securities, if any, subordinated pursuant
to Article XII, to make any change in Article XII that would limit or
terminate the benefits applicable to any holder of Senior Indebtedness (or
Representatives therefor) under Article XII;
(g) to add Guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(h) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
--------
however, that any such addition, change or elimination not otherwise
-------
permitted under this Section 9.01 shall (i) neither (A) apply to any Debt
Security of any series created prior to the execution of such supplemental
Indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security outstanding;
<PAGE>
69
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; and
(j) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.01 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
----------------------------------------------------
Debt Securities. Without notice to any Holder but with the consent (evidenced
- ----------------
as provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of
<PAGE>
70
the Board of Directors, and the Trustee may from time to time and at any time
enter into an Indenture or Indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental Indenture or of modifying in any manner the rights of the Holders
of the Debt Securities of such series; provided, that no such supplemental
--------
Indenture, without the consent of the Holders of each Debt Security so affected,
shall (i) reduce the percentage in principal amount of Debt Securities of any
series whose Holders must consent to an amendment; (ii) reduce the rate of or
extend the time for payment of interest on any Debt Security; (iii) reduce the
principal of or extend the Stated Maturity of any Debt Security; (iv) reduce the
premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III;
(v) make any Debt Security payable in Currency other than that stated in the
Debt Security; (vi) in the case of any Debt Security subordinated pursuant to
Article XII, make any change in Article XII that adversely affects the rights of
any Holder under Article XII; (vii) release any security that may have been
granted in respect of the Debt Securities; or (viii) make any change in Section
6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental Indenture.
<PAGE>
71
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by
-----------------------------------------------
Supplemental Indentures. Debt Securities of any series authenticated and
- ------------------------
delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture. New Debt Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such
<PAGE>
72
supplemental Indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
of such series then outstanding. Failure to make the appropriate notation or to
issue a new Debt Security of such series shall not affect the validity of such
amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any
--------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the Company. The
------------------------------------------
Company shall not consolidate with or merge with or into any Person, or convey,
transfer or lease all or substantially all its assets to any Person, unless: (i)
either (a) the Company shall be the continuing Person in the case of a merger or
(b) the resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities according to their
tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been Incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
Indenture (if any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case
-------------------------------------------
of any consolidation, merger,
<PAGE>
73
conveyance, transfer or lease of the assets of the Company in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation (except in the case of a lease)
shall be relieved of any further obligation under the Indenture and the Debt
Securities. The Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all the Debt
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of the Successor
Company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Debt Securities appertaining thereto thereafter to be issued as may be
appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
SECTION 11.01. Applicability of Article. The provisions of this
-------------------------
Article XI relating to defeasance of Debt Securities shall be applicable to the
Debt Securities of a series except as otherwise specified pursuant to Section
2.03 for the Debt Securities of such series.
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance.
----------------------------------------------------
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancelation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which
<PAGE>
74
shall have been replaced or paid as provided in Section 2.09 and (2) Debt
Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 11.05) or (ii) all Debt
Securities of such series not theretofore delivered to the Trustee for
cancelation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee as trust funds the
entire amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 2.03) sufficient to pay at
maturity or upon redemption all Debt Securities of such series not theretofore
delivered to the Trustee for cancelation, including principal and premium, if
any, and interest due or to become due on such date of maturity or redemption
date, as the case may be, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of, and premium, if
any, and interest on, such Debt Securities) with respect to the Debt Securities
of such series, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel complying with Section 13.05 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
clause (ii) of Section 10.01 and the related operation of Section 6.01(d), any
obligations with respect to the Debt Securities of such series which, in
accordance with Section 2.03(12), are subject to the covenant defeasance option,
and the related operation of Section 6.01(e), and the operation of Sections 6.01
(f) and (i) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of
<PAGE>
75
Default. If the Company exercises its covenant defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default specified in Sections 6.01(d), (e), (f) and (i) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b)(i) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.03, 4.04, 5.01, 7.06, 11.06 and
11.07 shall survive until the Debt Securities of the defeased series have been
paid in full. Thereafter, the Company's obligations in Sections 7.06 and 11.06
shall survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise
-------------------------
its legal defeasance option or its covenant defeasance option with respect to
Debt Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
<PAGE>
76
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such series
are subordinated pursuant to Article XII, is not prohibited by Article XII;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case of the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such 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 defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Debt Securities of such series 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; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
<PAGE>
77
SECTION 11.04. Application of Trust Money. The Trustee shall hold in
---------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series. In the event the Debt Securities of
the defeased series or the Debt Securities of a series with respect to which the
Indenture has been discharged are subordinated pursuant to Article XII, money
and securities so held in trust are not subject to Article XII.
SECTION 11.05. Repayment to Company. The Trustee and any paying
---------------------
agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time; provided, that, if such excess money or
--------
securities are held by the Trustee in connection with the exercise by the
Company of the legal defeasance option or the covenant defeasance option, the
Trustee shall not turn over such excess money or securities unless it shall have
received a certificate from a nationally recognized firm of independent
accountants to the effect that such money and securities are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance in accordance with Section 11.03.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereupon, all liability of the Trustee and any such paying agent
with respect to such money shall cease, and, thereafter, Holders entitled to
such money must look to the Company for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The
------------------------------------------
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
--------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt
<PAGE>
78
Securities of the defeased series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article XI until such time as the Trustee
or any paying agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article XI; provided, however, that if the
-------- -------
Company makes any payment of principal of, premium, if any, or interest on any
such Debt Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or such paying agent.
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article; Agreement to Subordinate.
---------------------------------------------------
The provisions of this Article XII shall be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
-------------------------------------
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy,
whether or not allowed as a claim against the Company in such bankruptcy
proceeding) before Holders of Subordinated Debt Securities shall be
entitled to receive any payment of principal of, or
<PAGE>
79
premium, if any, or interest on, the Subordinated Debt Securities; and
(2) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for
this Article XII shall be made to holders of Senior Indebtedness as their
interests may appear, except that such Holders may receive shares of stock
and any debt securities that are subordinated to Senior Indebtedness to at
least the same extent as the Subordinated Debt Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not
-------------------------------
pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
-------- -------
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and the Company from the
<PAGE>
80
Person or Persons who gave such Blockage Notice, (ii) by repayment in full in
cash of such Designated Senior Indebtedness or (iii) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section 12.03), unless the
holders of such Designated Senior Indebtedness or the Representative of such
holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Subordinated Debt
Securities after such Payment Blockage Period. Not more than one Blockage Notice
may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to any number of issues of Senior Indebtedness during such
period; provided, however, that if any Blockage Notice within such 360-day
-------- -------
period is given by or on behalf of any holders of Designated Senior Indebtedness
(other than the Bank Indebtedness), the Representative of the Bank Indebtedness
may give another Blockage Notice within such period; provided further, however,
---------------- -------
that in no event may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period. For purposes of this Section 12.03, no default or event
of default which existed or was continuing on the date of the commencement of
any Payment Blockage Period with respect to the Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If
-------------------------------------------
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a
------------------------------------
distribution is made to Holders of Subordinated Debt Securities that because of
this Article XII should not have been made to them, the Holders who receive such
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
<PAGE>
81
SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in
------------
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise would
have been made to Holders of Subordinated Debt Securities is not, as between the
Company and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the
----------------
relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company, its creditors (other than the
holders of Senior Indebtedness), and Holders of either Subordinated Debt
Securities or Debt Securities, the obligation of the Company, which is
absolute and unconditional, to pay principal of, and premium, if any, and
interest on, the Subordinated Debt Securities and the Debt Securities in
accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Holders of Subordinated Debt Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No
---------------------------------------------
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
-----------------------------------
Section 12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
--------
however,
- -------
<PAGE>
82
that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
-----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
-----------------------------------------------------
Accelerate. The failure to make a payment pursuant to the Debt Securities by
- -----------
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding
------------------------------
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XII, and none of the Holders thereof shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of
the Company or any other creditor of the Company.
SECTION 12.13. Trustee Entitled to Rely. Upon any payment or
-------------------------
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of
<PAGE>
83
the liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to such Holders or (iii) upon the Representatives
for the holders of Senior Indebtedness for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII. The Trustee shall
be entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a
Representative on behalf of such holder), to establish that such notice has been
given by a holder of such Senior Indebtedness or Representative on behalf of any
such holder or holders. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
SECTION 12.14. Trustee to Effectuate Subordination. Each Holder by
------------------------------------
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders of Subordinated Debt Securities
and the holders of Senior Indebtedness as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee
- -------------
undertakes to perform or observe only such of its covenants and obligations as
are specifically set forth in this Article XII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and
<PAGE>
84
shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders of Subordinated Debt Securities or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article XII or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
---------------------------------------------
Subordination Provisions. Each Holder by accepting a Subordinated Debt Security
- -------------------------
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company Bound by Indenture.
-----------------------------------------------------
All the covenant's stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor
------------------------------------------------
Company Valid. Any act or proceeding by any provision of this Indenture
- --------------
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.
SECTION 13.03. Required Notices or Demands. Except as otherwise
----------------------------
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited first class mail, postage prepaid, in a post office letter box
in the United States addressed (until another address is filed by the Company
with the Trustee) as follows: Vintage Petroleum, Inc., 4200 One Williams
Center, Tulsa, OK 74172, Attention: Chief Financial Officer.
<PAGE>
85
Except as otherwise expressly provided in this Indenture, any notice,
direction, request or demand by the Company or by any Holder to or upon the
Trustee may be given or made, for all purposes, by being deposited first class
mail, postage prepaid, in a post office letter box in the United States
addressed to the corporate trust office of the Trustee initially at The Chase
Manhattan Bank, 450 West 33rd Street, New York, NY 10001.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited first class mail, postage prepaid, in a
post office letter box in the United States addressed to such Holder at the
address of such Holder as shown on the Debt Security Register. Any report
pursuant to Section 313 of the Trust Indenture Act shall be transmitted in
compliance with subsection (c) therein.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.04. Indenture and Debt Securities to Be Construed in
------------------------------------------------
Accordance with the Laws of the State of New York. This Indenture and each Debt
- --------------------------------------------------
Security shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State (without reference to
principles of conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
--------------------------------------------------
Furnished upon Application or Demand by the Company. Upon any application or
- ----------------------------------------------------
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of
<PAGE>
86
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate (other than an Officers' Certificate provided
pursuant to Section 4.05) or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.06. Payments Due on Legal Holidays. In any case where the
-------------------------------
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date
is not a business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act to Control.
-----------------------------------------------------
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required or
deemed to be included herein by operation of the Trust Indenture Act, such
required or deemed provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be
<PAGE>
87
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 13.08. Computation of Interest on Debt Securities. Interest,
-------------------------------------------
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------- ----------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any
---------------------------
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt
Securities.
SECTION 13.11. Severability. In case any provision in this Indenture
-------------
or the Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings
-------------------
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.13. Indenture May Be Executed in Counterparts. This
------------------------------------------
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
<PAGE>
88
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
VINTAGE PETROLEUM, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
by
----------------------------
Name:
Title:
<PAGE>
EXHIBIT 4.2
================================================================================
FORM OF
JUNIOR SUBORDINATED
INDENTURE
Among
Vintage Petroleum, Inc.
and
[ ],
as Trustee
Dated as of [ ]
================================================================================
<PAGE>
TABLE OF CONTENTS/1/
Page
PARTIES.................................................................1
RECITALS
Purpose of Indenture....................................1
Compliance with legal
requirements............................................1
Purpose of and consideration
for Indenture...........................................2
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain terms defined
in the Trust Indenture Act of 1939,
as amended, or by reference therein
in the Securities Act of 1933, as
amended, to have the meanings
assigned therein.......................................2
Authenticating Agent......................................2
Board of Directors........................................2
Board Resolution..........................................2
Business Day..............................................2
Certificate...............................................3
Common Securities.........................................3
Company...................................................3
Corporate Trust Office....................................3
Declaration of Trust......................................3
Debenture or Debentures...................................3
Debentureholder...........................................3
Default...................................................3
Depositary................................................3
Event of Default..........................................4
Global Debenture..........................................4
Governmental Obligations..................................4
Guarantee.................................................4
Indenture.................................................4
Interest Payment Date.....................................5
Officers' Certificate.....................................5
Opinion of Counsel........................................5
Outstanding...............................................5
- ------------------------
/1/ This Table of Contents does not constitute part of the Indenture and
should not have any bearing upon the interpretation of any of its terms or
provisions.
i
<PAGE>
Person....................................................6
Predecessor Debenture.....................................6
Preferred Securities......................................6
Property Trustee..........................................6
Responsible Officer.......................................6
Security Exchange.........................................6
Senior Indebtedness.......................................6
Subsidiary................................................7
Trustee...................................................7
Trust Indenture Act.......................................8
Vintage Petroleum Capital Trust...........................8
ARTICLE II
ISSUE, DESCRIPTION, TERMS, EXECUTION
REGISTRATION AND EXCHANGE OF DEBENTURES
SECTION 2.01 Designation, terms, amount, authentication and delivery
of Debentures.............................................8
SECTION 2.02 Form of Debentures and Trustee's certificate.............10
SECTION 2.03 Date and denominations of Debentures
and provisions for payment of principal,
premium and interest.....................................10
SECTION 2.04 Execution of Debentures..................................12
SECTION 2.05 Exchange of Debentures...................................14
(a) Registration and transfer of Debentures.............14
(b) Debentures to be accompanied
by proper instruments of transfer...................14
(c) Charges upon exchange, transfer or regulations of
Debenture...........................................15
(d) Restrictions on transfer or exchange at time
of redemption.......................................15
SECTION 2.06 Temporary Debentures.....................................15
SECTION 2.07 Mutilated, destroyed, lost or stolen Debentures..........16
SECTION 2.08 Cancellation of surrendered Debentures...................17
SECTION 2.09 Provisions of Indenture and Debentures for sole
benefit of parties and Debentureholders..................17
ii
<PAGE>
SECTION 2.10 Appointment of Authenticating Agent.......................17
SECTION 2.11 Global Debenture..........................................18
(a) Authentication and Delivery; Legend..................18
(b) Transfer of Global Debenture.........................18
(c) Issuance of Debentures in definitive form............19
(d) .....................................................19
SECTION 2.12 CUSIP Numbers.............................................20
ARTICLE III
REDEMPTION OF DEBENTURES AND SINKING FUND
PROVISIONS
SECTION 3.01 Redemption of Debentures..................................20
SECTION 3.02 (a) Notice of redemption.................................20
(b) Selection of Debentures in case less
than all Debentures to be redeemed...................21
SECTION 3.03 (a) When Debentures called for redemption become
due and payable......................................22
(b) Receipt of new Debenture upon partial payment........22
SECTION 3.04 Sinking Fund for Debentures...............................22
SECTION 3.05 Satisfaction of Sinking Fund Payments with Debentures.....23
SECTION 3.06 Redemption of Debentures for Sinking Fund.................23
ARTICLE IV
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01 Payment of principal of (and premium, if any)
and interest on Debentures................................24
SECTION 4.02 Maintenance of office or agency for payment of Debentures,
designation of office or agency for payment, registration,
transfer and exchange of Debentures.......................24
SECTION 4.03 (a) Duties of payment agent..............................24
(b) Company as payment agent.............................25
(c) Holding sums of trust................................25
iii
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SECTION 4.04 Appointment to fill vacancy in office of Trustee..........26
SECTION 4.05 Additional Covenants......................................26
ARTICLE V
DEBENTUREHOLDERS LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
SECTION 5.01 Company to furnish Trustee
information as to names and
addresses of Debentureholders.............................26
SECTION 5.02 Trustee's treatment of Debenture holders list:
(a) Trustee to preserve information as to names and
addresses of Debentureholders received by it in
capacity of payment agent............................26
(b) Trustee may destroy list of Debentureholders on
certain conditions...................................26
(c) Trustee to make information as to names and
addresses of Debentureholders available to
"applicants" or mail communications to
Debentureholders in certain circumstances............26
(d) Procedure if Trustee elects not to make information
available to applicants..............................27
(e) Company and Trustee not accountable for disclosure
of information.......................................28
SECTION 5.03 Reports filed by Company:
(a) Annual and other reports to be filed by Company
with Trustee.........................................28
(b) Additional information and reports to be filed with
Trustee and Securities and Exchange Commission.......28
(c) Summaries of information and reports to be
transmitted by Company to Debentureholders...........29
(d) Annual Certificate to be furnished to Trustee........29
iv
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SECTION 5.04 Reports transmitted by Trustee:
(a) Trustee to transmit annual report to
Debentureholders.....................................29
(b) Trustee to transmit certain further reports to
Debentureholders.....................................30
(c) Copies of reports to be filed with stock exchanges
and Securities and Exchange Commission...............31
ARTICLE VI
REMEDIES OF THE TRUSTEE AND DEBENTUREHOLDERS
ON EVENT OF DEFAULT
SECTION 6.01 (a) Events of Default defined............................31
(b) Acceleration of maturity upon Event of Default.......33
(c) Waiver of default and rescission of declaration of
maturity.............................................33
(d) Restoration of former position and rights upon
curing default.......................................34
(e) Certain rights of holders of Preferred Securities....34
SECTION 6.02 (a) Covenant of Company to pay to Trustee whole amount
due on Debentures on Default in payment of interest
or principal (and premiums, if any)..................34
(b) Trustee may recover judgment for whole amount due on
Debentures on failure of Company to pay..............35
(c) Filing of proof of claim by Trustee in bankruptcy,
reorganization or receivership proceeding............35
(d) Rights of action and of asserting claims may be
enforced by Trustee without possession
of Debentures........................................36
SECTION 6.03 Application of moneys collected by Trustee................36
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SECTION 6.04 Limitation on suits by holders of Debentures..............37
SECTION 6.05 (a) Remedies cumulative..................................38
(b) Delay or omission in exercise of rights not waiver
of default...........................................38
SECTION 6.06 Rights of holders of majority in principal amount of
Debentures to direct Trustee and to waive defaults........38
SECTION 6.07 Trustee to give notice of defaults known to it,
but may withhold in certain circumstances.................39
SECTION 6.08 Requirements of an undertaking to pay costs in certain
suits under Indenture or against Trustee..................40
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 Trustee conduct:
(a) Upon event of Default occurring and continuing,
Trustee shall exercise powers vested in it, and
use same degree of care and skill in their exercise,
as prudent individual would use......................41
(b) Trustee not relieved from liability for negligence
or willful misconduct except as provided in
this section.........................................41
(1) Prior to Event of Default and after the curing
of all Events of Default which may have occurred..41
(i) Trustee not liable except for performance of
duties specifically set forth.....................41
(ii) In absence of bad faith, Trustee may conclusively
rely on certificates or opinions furnished it
hereunder, subject to duty to examine the same if
specifically required to be furnished to it.......42
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(2) Trustee not liable for error......................42
(3) Trustee not liable for actions taken at the
direction of holders..............................42
(4) Trustee not required to expend funds in certain
circumstances without indemnity...................42
(5) Liability provisions are subject to Article VII...42
SECTION 7.02 Subject to provisions of
Section 7.01:
(a) Trustee may rely on documents believed genuine and
properly signed or presented.........................43
(b) Sufficient evidence by certain instruments
provided for.........................................43
(c) Trustee may rely on Officer's Certificate............43
(d) Trustee may consult with counsel and act on advice or
Opinion of Counsel...................................43
(e) Trustee may require indemnity from Debentureholders..43
(f) Trustee not liable for actions in good faith
believed to be authorized............................44
(g) Trustee not bound to investigate facts or matters
stated in certificates, etc., unless requested in
writing by Debentureholders..........................44
(h) Trustee may act through agents.......................44
SECTION 7.03 (a) Trustee not liable for recitals in Indenture or in
Debenture............................................44
(b) No representations by Trustee as to validity of
Indenture or of Debentures...........................45
(c) Trustee not accountable for use of Debentures or
proceeds.............................................45
SECTION 7.04 Trustee, paying agent or Debenture Registrar may own
Debentures................................................45
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SECTION 7.05 Moneys received by Trustee to be held in trust without
interest..................................................45
SECTION 7.06 (a) Trustee entitled to compensation, reimbursement
and indemnity........................................45
(b) Obligations to Trustee to be secured by lien prior to
Debentures...........................................46
(c) Trustee's expenses in connection with bankruptcy are
expenses of administration...........................46
(d) Company's obligations under 7.06 survive.............46
SECTION 7.07 Right of Trustee to rely on certificate of officers of
Company where other evidence specifically prescribed......46
SECTION 7.08 (a) Trustee acquiring conflicting interest to eliminate
conflict or resign...................................46
(b) Notice to Debentureholders in case of failure to
comply with subsection (a)...........................47
(c) Trustee resignation not required under certain
circumstances........................................47
SECTION 7.09 Requirements for eligibility of Trustee...................47
SECTION 7.10 (a) Resignation of Trustee and appointment of
successor............................................48
(b) Removal of Trustee by Company or by court on
Debentureholders' application........................48
(c) Removal of Trustee by holders of majority in
principal amount of Debentures.......................49
(d) Time when resignation or removal of Trustee
effective............................................49
(e) One Trustee for each series..........................49
SECTION 7.11 (a) Acceptance by successor to Trustee...................49
(b) Trustee with respect to less than all series.........50
(c) Company to confirm Trustee's rights..................51
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(d) Successor Trustee to be qualified....................51
(e) Notice of succession.................................51
SECTION 7.12 Successor to Trustee by merger, consolidation or
succession to business....................................51
SECTION 7.13 (a) Limitations on rights of Trustee as a creditor to
obtain payment of certain claims within four months
prior to default or during default, or to realize on
property as such creditor thereafter.................52
(b) Certain creditor relationships excluded..............55
(c) Definition of certain terms..........................55
ARTICLE VIII
CONCERNING THE DEBENTUREHOLDERS
SECTION 8.01 Evidence of action by Debentureholders...................56
SECTION 8.02 Proof of execution of instruments and of holding
of Debentures.............................................57
SECTION 8.03 Who may de deemed owners of Debentures....................58
SECTION 8.04 Debentures owned by Company or controlled or controlling
companies disregarded for certain purposes................58
SECTION 8.05 Instruments executed by Debentureholders bind future
holders...................................................58
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Purposes for which supplemental indenture may be entered
into without consent of Debentureholders..................59
SECTION 9.02 Modification of Indenture with consent of
Debentureholders..........................................60
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SECTION 9.03 Effect of supplemental indentures.........................62
SECTION 9.04 Debentures may bear notation of changes by supplemental
indentures................................................62
SECTION 9.05 Opinion of Counsel........................................63
ARTICLE X
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 10.01 Company May Consolidate, Etc. Only on Certain Terms......63
SECTION 10.02 Successor Corporation Substituted........................63
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 11.01 Satisfaction and discharge of Indenture..................64
SECTION 11.02 Application by Trustee of Funds Deposited for Payments of
Debentures...............................................67
SECTION 11.03 Application by Trustee of funds deposited for payment
of Debentures............................................67
SECTION 11.04 Repayment of moneys held by paying agent.................67
SECTION 11.05 Repayment of moneys held by Trustee......................68
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01 Incorporators, stockholders, officers and directors of
Company exempt from individual liability.................68
x
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Successors and assigns of Company bound by Indenture.....69
SECTION 13.02 Acts of board, committee or officer of successor
company valid............................................69
SECTION 13.03 Surrender of powers of Company...........................69
SECTION 13.04 Required notices or demands may be served by mail........69
SECTION 13.05 Indenture and Debentures to be construed in accordance
with laws of the State of New York.......................69
SECTION 13.06 (a) Officers' Certificate and Opinion of Counsel to be
furnished upon applications or demands by Company...70
(b) Statements to be included in each certificate or
opinion with respect to compliance with condition
or covenant.........................................70
SECTION 13.07 Payments due on Sundays or holidays......................70
SECTION 13.08 Provisions required by Trust Indenture Act of 1939 to
control..................................................70
SECTION 13.09 Execution in counterparts................................71
SECTION 13.10 Separability of indenture provisions.....................71
SECTION 13.11 Assignment by Company to subsidiary......................71
SECTION 13.12 Holders of Preferred Securities as third party
beneficiaries of this Indenture; holders of Preferred
Securities may institute legal proceedings against the
Company in certain cases.................................71
ARTICLE XIV
SUBORDINATION OF DEBENTURES
SECTION 14.01 Agreement to Subordinate.................................72
SECTION 14.02 Payment Over of Proceeds Upon Dissolution, etc...........72
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SECTION 14.03 Trustee to Effectuate Subordination......................75
SECTION 14.04 Trustee Not Charged with Knowledge of Prohibition........75
SECTION 14.05 Rights of Trustee as Holder of Senior Indebtedness.......76
SECTION 14.06 Trustee Not Fiduciary for Holders of
Senior Indebtedness......................................76
SECTION 14.07 Article Applicable to Paying Agents......................76
ACCEPTANCE OF TRUST BY TRUSTEE..........................................77
SIGNATURES AND SEALS....................................................77
ACKNOWLEDGMENTS.........................................................77
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JUNIOR SUBORDINATED INDENTURE (this "Indenture")
dated as of [ ], between Vintage Petroleum, Inc., a
corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes referred to
as the "Company"), and [ ], a New York banking
corporation, as Trustee (hereinafter sometimes referred
to as the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company has fully
authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debentures (hereinafter referred to as the "Debentures"),
in an unlimited aggregate principal amount to be issued from time to time in one
or more series in accordance with the terms of this Indenture, as registered
Debentures without coupons, to be authenticated by the certificate of the
Trustee;
WHEREAS, to provide the terms and conditions upon which the Debentures
are to be authenticated, issued and delivered, the Company has duly authorized
the execution of this Indenture;
WHEREAS, the Debentures and the certificate of authentication to be
borne by the Debentures (the "Certificate of Authentication") are to be
substantially in such forms as may be approved by the Board of Directors (as
defined below) or set forth in any indenture supplemental to this Indenture; and
WHEREAS all acts and things necessary to make the Debentures issued
pursuant hereto, when executed by the Company and authenticated and delivered by
the Trustee in accordance with the terms of this Indenture, the legal, valid and
binding obligations of the Company, and to make this Indenture a valid indenture
and agreement of the Company in accordance with its terms, have been done and
performed or will be done and performed prior to the issuance of such
Debentures, and the execution of this Indenture has been and the issuance
hereunder of the Debentures has been, or will be prior to issuance, in all
respects duly authorized, and the Company, in the exercise of the legal right
and power in it vested, executes this Indenture and proposes to make, execute,
issue and deliver the Debentures.
<PAGE>
2
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Debentures are, and are to be, authenticated, issued and delivered,
and in consideration of the premises, and of the acquisition and acceptance of
the Debentures by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit (subject to the provisions of
this Indenture) of the respective holders from time to time of the Debentures,
without any discrimination, preference or priority of any one Debenture over any
other by reason of priority in the time of issue, sale or negotiation thereof,
or otherwise, except as provided herein, as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. The terms defined in this Section (except as in this
Indenture otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture, any resolution of the Board of Directors of
the Company and of any indenture supplemental hereof shall have the respective
meanings specified in this Section. All other terms used in this Indenture
which are defined in the Trust Indenture Act of 1939, as amended, or which are
by reference in such Act defined in the Securities Act of 1933, as amended
(except as herein otherwise expressly provided or unless the context otherwise
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
instrument.
"Authenticating Agent" means an authenticating agent with respect to
all or any of the series of Debentures, as the case may be, appointed with
respect to all or any series of the Debentures, as the case may be, by the
Trustee pursuant to Section 2.10.
"Board of Directors" means the Board of Directors of the Company, or
any committee of such Board duly authorized to act on behalf of such Board.
"Board Resolution" means a copy of one or more resolutions, certified
by the secretary or an assistant secretary of the Company to have been adopted
or consented to by the Board of Directors and to be in full force and effect,
and delivered to the Trustee.
"Business Day", with respect to any series of Debentures, means any
day other than a Saturday, Sunday or
<PAGE>
3
any other day on which banking institutions in the City and State of New York,
are authorized or required by law to close.
"Certificate" means a certificate signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the Company. The Certificate need not comply with the provisions of Section
13.06.
"Common Securities" means the common undivided beneficial interests in
the assets of the applicable Vintage Petroleum Capital Trust.
"Company" means Vintage Petroleum, Inc., a corporation duly organized
and existing under the laws of the State of Delaware, and, subject to the
provisions of Article X, shall also include its successors and assigns.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Indenture is
located at [ ]
Attention: [ ].
"Declaration of Trust" means the Declaration of Trust of the Vintage
Petroleum Capital Trust, if any, specified in the applicable Board Resolution or
supplemental indenture establishing a particular series of Debentures pursuant
to Section 2.01.
"Debenture" or "Debentures" means any Debenture or Debentures, as the
case may be, authenticated and delivered under this Indenture.
"Debentureholder", "holder of Debentures", "registered holder", or
other similar term, means the Person or Persons in whose name or names a
particular Debenture shall be registered on the books of the Company kept for
such purpose in accordance with the terms of this Indenture.
"Default" means any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Depositary" means, with respect to Debentures of any series for which
the Company shall determine that such Debentures will be issued as a Global
Debenture, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing
<PAGE>
4
agency under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to either Section 2.01 or 2.11.
"Event of Default" means, with respect to Debentures of a particular
series, any event specified in Section 6.01(a), continued for the period of
time, if any, therein designated.
"Global Debenture" means, with respect to any series of Debentures, a
Debenture executed by the Company and delivered by the Trustee to the Depositary
or pursuant to the Depositary's instruction, all in accordance with the
Indenture, which shall be registered in the name of the Depositary or its
nominee.
"Governmental Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Governmental Obligation or a specific payment of principal of, or interest on,
any such Governmental Obligation held by such custodian for the account of the
holder of such depositary 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 depositary receipt from any amount received by the
custodian in respect of the Governmental Obligation or the specific payment of
principal of, or interest on, the Governmental Obligation evidenced by such
depositary receipt.
"Guarantee" means the guarantee, if any, that the Company may enter
into that operates directly or indirectly for the benefit of holders of
Preferred Securities issued by a Vintage Petroleum Capital Trust.
"Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented,
including for all purposes of this instrument, as amended or supplemented, the
provisions
<PAGE>
5
of the Trust Indenture Act that are deemed to be a part of and govern this
instrument, as amended or supplemented.
"Interest Payment Date" when used with respect to any installment of
interest on a Debenture of a particular series means the date specified in such
Debenture or in a Board Resolution or in an indenture supplemental hereto with
respect to such series as the fixed date on which an installment of interest
with respect to Debentures of that series is due and payable.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice-Chairman of the Board, the President or any Vice President
and by the Treasurer or any Assistant Treasurer or the Controller or any
Assistant Controller or the Secretary or any Assistant Secretary of the Company
and delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 13.06, if and to the extent required by the
provisions thereof.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of, or counsel for, the Company and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
provided for in Section 13.06, if and to the extent required by the provisions
thereof.
"Outstanding", when used with reference to Debentures of any series,
subject to the provisions of Section 8.01, means, as of any particular time, all
Debentures of that series theretofore authenticated and delivered by the Trustee
under this Indenture, except (a) Debentures theretofore canceled by the Trustee
or any paying agent, or delivered to the Trustee or any paying agent for
cancellation or which have previously been canceled; (b) Debentures or portions
thereof for the payment or redemption of which moneys or Governmental
Obligations in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust for the holders of such Debentures by the Company
(if the Company shall act as its own paying agent); provided, however, that if
-------- -------
such Debentures or portions of such Debentures are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
III provided, or provision satisfactory to the Trustee shall have been made for
giving such notice; and (c) Debentures in lieu of, or in substitution for, which
other Debentures shall have been authenticated and delivered pursuant to the
terms of Section 2.07.
<PAGE>
6
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture; and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 2.07 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" means the preferred undivided beneficial
interests in the assets of the applicable Vintage Petroleum Capital Trust.
"Property Trustee" means the entity performing the function of the
Property Trustee under the applicable Declaration of Trust of a Vintage
Petroleum Capital Trust.
"Responsible Officer" when used with respect to the Trustee means any
officer of the Trustee responsible for the administration of this Indenture and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of, and
familiarity with, the particular subject.
"Security Exchange" when used with respect to the Debentures of any
series which are held as trust assets of a Vintage Petroleum Capital Trust
pursuant to the Declaration of Trust of such Vintage Petroleum Capital Trust
means the distribution of the Debentures of such series by such Vintage
Petroleum Capital Trust in exchange for the Preferred Securities and Common
Securities of such Vintage Petroleum Capital Trust in dissolution of such
Vintage Petroleum Capital Trust pursuant to the Declaration of Trust of such
Vintage Petroleum Capital Trust.
"Senior Indebtedness" means (i) the principal of, premium, if any, and
accrued and unpaid interest on (a) indebtedness of the Company for money
borrowed, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, (b) guarantees by the Company of
indebtedness for money borrowed by any other Person, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
(c) indebtedness evidenced by notes, debentures, bonds or
<PAGE>
7
other instruments of indebtedness for the payment of which the Company is
responsible or liable, by guarantees or otherwise, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
and (d) obligations of the Company under any agreement to lease, or any lease
of, any real or personal property, whether outstanding on the date of execution
of this Indenture or thereafter created, incurred or assumed, (ii) any other
indebtedness, liability or obligation, contingent or otherwise, of the Company
and any guarantee, endorsement or other contingent obligation of the Company in
respect of any indebtedness, liability or obligation, whether outstanding on the
date of execution of this Indenture or thereafter created, incurred or assumed,
and (iii) modifications, renewals, extensions and refundings of any such
indebtedness, liabilities, obligations or guarantees; unless, in the instrument
creating or evidencing the same or pursuant to which the same is outstanding, it
is provided that such indebtedness, liabilities, obligations or guarantees, or
such modification, renewal, extension or refunding thereof, are not superior in
right of payment to the Debentures; provided, however, that Senior Indebtedness
-------- -------
shall not include any obligation of the Company to any Subsidiary.
Notwithstanding anything to the contrary in this Indenture or the Debentures,
Senior Indebtedness shall not include any indebtedness of the Company which, by
its terms or the terms of the instrument creating or evidencing it, is
subordinate in right of payment to, or pari passu with, the Debentures.
---- -----
"Subsidiary" means any corporation, association or other business
entity of which a majority of the outstanding stock, having under ordinary
circumstances (not dependent upon the happening of a contingency) voting power
to elect a majority of the board of directors (or persons performing similar
functions) of such corporation, association or other business entity in
question, is at the time, directly or indirectly, owned or controlled by the
Company or by one or more Subsidiaries or by the Company and one or more
Subsidiaries; collectively, the "Subsidiaries".
"Trustee" means [ ], a New York banking
corporation, and, subject to the provisions of Article Seven, shall also include
its successors and assigns, and, if at any time there is more than one person
acting in such capacity hereunder, "Trustee" shall mean each such person. The
term "Trustee" as used with respect to a particular series of the Debentures
means the trustee with respect to such series.
<PAGE>
8
"Trust Indenture Act", means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument is executed; provided, however,
-------- -------
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Vintage Petroleum Capital Trust" means such business trust created
under the laws of the State of Delaware specified in the applicable Board
Resolution or supplemental indenture establishing a particular series of
Debentures pursuant to Section 2.01 and to whom such Series of Debentures will
be sold.
ARTICLE II
Issue, Description, Terms, Execution,
-------------------------------------
Registration and Exchange of Debentures
---------------------------------------
Section 2.01. The aggregate principal amount of Debentures which may
be authenticated and delivered under this Indenture is unlimited.
The Debentures may be issued in one or more series up to the aggregate
principal amount of Debentures of that series authorized in or pursuant to one
or more indentures supplemental hereto, prior to the initial issuance of
Debentures of a particular series. Prior to the initial issuance of Debentures
of any series, there shall be established in or pursuant to one or more
indentures supplemental hereto:
(1) the title of the Debentures of the series (which shall distinguish
the Debentures of the series from all other Debentures);
(2) any limit upon the aggregate principal amount of the Debentures of
the series which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of the
series);
(3) the date or dates on which the principal of the Debentures of the
series is payable and the right, if any, to extend such date or dates and
the conditions, if any, to such an extension;
<PAGE>
9
(4) the rate or rates at which the Debentures of the series shall bear
interest or the manner of calculation of such rate or rates, if any;
(5) the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable or the manner
of determination of such Interest Payment Dates and the record date for the
determination of holders to whom interest is payable on any such Interest
Payment Dates;
(6) the right, if any, to extend the interest payment periods and the
duration of such extension and the conditions, if any, to such an
extension;
(7) the period or periods within which, the price or prices at which,
and the terms and conditions upon which, Debentures of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Debentures of the series pursuant to any sinking fund or analogous
provisions (including payments made in cash in anticipation of future
sinking fund obligations) or at the option of a holder thereof and the
period or periods within which, the price or prices at which, and the terms
and conditions upon which, Debentures of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) the form of the Debentures of the series, including the form of
the Certificate of Authentication for the series;
(10) if other than denominations of $50 or any integral multiple
thereof, the denominations in which the Debentures of the series shall be
issuable;
(11) whether the Debentures of the series are issuable as a Global
Debenture and, in such case, the identity of the Depositary for the
Debentures of the series.
(12) any and all other terms with respect to the Debentures of the
series (which terms shall not be inconsistent with the terms of this
Indenture);
(13) if the Debentures of the series are to be deposited as trust
assets in a Vintage Petroleum Capital Trust, the name of the applicable
Vintage
<PAGE>
10
Petroleum Capital Trust (which shall distinguish such statutory business
trust from any and all other Vintage Petroleum Capital Trusts) into which
the Debentures of the series are to be deposited as trust assets and the
date of its Declaration of Trust;
(14) any condition to, or restriction on, the transferability of the
Debentures; and
(15) whether the Debentures may be converted into or exchanged for
common stock, preferred stock, indebtedness or securities of any kind of
the Company or any third party.
All Debentures of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to any indenture supplemental hereto.
SECTION 2.02. The Debentures of any series and the Trustee's
certificate of authentication to be borne by such Debentures shall be
substantially of the tenor and purport as set forth in one or more indentures
supplemental hereto and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which Debentures of that series
may be listed, or to conform to usage.
SECTION 2.03. The Debentures shall be issuable as registered
Debentures and in the denominations of $[ ] or any integral multiple thereof,
subject to Section 2.01(10). The Debentures of a particular series shall bear
interest payable on the dates and at the rate specified with respect to that
series. The principal of and the interest on the Debentures of any series, as
well as any premium thereon in case of redemption thereof prior to maturity,
shall be payable in such coin or currency of the United States of America as at
the time of payment is legal tender for public and private debt, at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York. Each Debenture shall be dated the
date of its authentication. Interest on the Debentures shall be computed on the
basis of a 360-day year of twelve 30-day months.
<PAGE>
11
The interest installment on any Debenture which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures of that series shall be paid to the person in whose name such
Debenture (or one or more Predecessor Debentures) is registered at the close of
business on the regular record date for such interest installment. In the event
that any Debenture of a particular series or portion thereof is called for
redemption and the redemption date is subsequent to a regular record date with
respect to any Interest Payment Date for Debentures of that series and on or
prior to such Interest Payment Date, interest on such Debenture will be paid
upon presentation and surrender of such Debenture as provided in Section 3.03.
Any interest on any Debenture which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date for Debentures of that
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on
Debentures to the persons in whose names such Debentures (or their
respective Predecessor Debentures) are registered at the close of business
on a special record date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Debenture and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted Interest
which shall not be more than 20 nor less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each Debentureholder at his or her address
as it appears in the Debenture Register (as hereinafter defined), not less
than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date
<PAGE>
12
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the persons in whose names such Debentures (or their Predecessor
Debentures) are registered on such special record date and shall be no
longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any
Debentures in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Debentures may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise set forth in one or more indentures supplemental
hereto establishing the terms of any series of Debentures pursuant to Section
2.01, the term "regular record date" as used in this Section with respect to a
series of Debentures with respect to any Interest Payment Date for such series
shall mean either (x) the fifteenth day of the month immediately preceding the
month in which an Interest Payment Date established for such series pursuant to
Section 2.01 shall occur, if such Interest Payment Date is the first day of a
month, or (y) the first day of the month in which an Interest Payment Date
established for such series pursuant to Section 2.01 shall occur, if such
Interest Payment Date is the fifteenth day of a month, whether or not such date
is a Business Day.
Subject to the foregoing provisions of this Section, each Debenture of
a series delivered under this Indenture upon transfer of, or in exchange for, or
in lieu of, any other Debenture of such series shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debenture.
SECTION 2.04. Subject to the provisions of Section 2.06, the
Debentures shall be printed, lithographed or engraved on steel engraved borders
or produced by any combination of these methods or may be produced in any other
manner, as the proper officers of the Company may determine, and shall be signed
on behalf of the Company by the Chairman
<PAGE>
13
or Vice Chairman of its Board of Directors or its Chief Executive Officer,
President or one of its Vice Presidents, or its Treasurer or any Assistant
Treasurer under its corporate seal attested by its Secretary or one of its
Assistant Secretaries. The signature of the Chairman, Vice Chairman, Chief
Executive Officer, President, any Vice President, the Treasurer or any Assistant
Treasurer and/or the signature of the Secretary or any Assistant Secretary in
attestation of the corporate seal, upon the Debentures, may be in the form of a
manual or facsimile signature of a present or any future Chairman, Vice
Chairman, President, Vice President, Treasurer or Assistant Treasurer and of a
present or any future Secretary or Assistant Secretary and may be imprinted or
otherwise reproduced on the Debentures and for that purpose the Company may use
the manual or facsimile signature of any person who shall have been a Chairman,
Vice Chairman, Chief Executive Officer, President, Vice President, Treasurer or
Assistant Treasurer or any person who shall have been a Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Debentures shall be
authenticated and delivered, or disposed of, such person shall have ceased to be
the Chairman, Vice Chairman, Chief Executive Officer, President or a Vice
President, or the Treasurer or an Assistant Treasurer or the Secretary or an
Assistant Secretary, of the Company, as the case may be. The seal of the Company
may be in the form of a facsimile of the seal of the Company and may be
impressed, affixed, imprinted or otherwise reproduced on the Debentures.
Only such Debentures as shall bear thereon a Certificate of
Authentication substantially in the form established for such Debentures,
executed manually by an authorized signatory of the Trustee, or by any
Authenticating Agent with respect to such Debentures, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
Certificate of Authentication executed by the Trustee, or by any Authenticating
Agent appointed by the Trustee with respect to such Debentures, upon any
Debenture executed by the Company shall be conclusive evidence that the
Debenture so authenticated has been duly authenticated and made available for
delivery hereunder and that the holder is entitled to the benefits of this
Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debentures of any series executed by the
Company to the Trustee for authentication, together with a written order of the
Company in the form of an Officers' Certificate for the authentication and
delivery of such Debentures, and
<PAGE>
14
the other documents required by Section 13.06, and the Trustee, in accordance
with such written order, shall authenticate and make available for delivery such
Debentures.
The Trustee shall not be required to authenticate such Debentures if
the issue of such Debentures pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Debentures, this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
SECTION 2.05. (a) Debentures of any series may be exchanged, upon
presentation thereof at the office or agency of the Company designated for such
purpose in the Borough of Manhattan, the City and State of New York, for other
Debentures of such series of authorized denominations, and for a like aggregate
principal amount, upon payment of a sum sufficient to cover any tax or other
governmental charge in relation thereto, all as provided in this Section. In
respect of any Debentures so surrendered for exchange, the Company shall
execute, the Trustee shall authenticate and such office or agency shall make
available for delivery in exchange therefor the Debenture or Debentures of the
same series which the Debentureholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the Borough of Manhattan, the City and
State of New York, or such other location designated by the Company a register
or registers (herein referred to as the "Debenture Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall register
the Debentures and the transfers of Debentures as in this Article provided and
which at all reasonable times shall be open for inspection by the Trustee. The
registrar for the purpose of registering Debentures and transfers of Debentures
as herein provided shall be appointed as authorized by Board Resolution (the
"Debenture Registrar").
Upon surrender for registration of transfer of any Debenture at the
office or agency of the Company designated for such purpose in the Borough of
Manhattan, the City and State of New York, the Company shall execute, the
Trustee shall authenticate and such office or agency shall make available for
delivery in the name of the transferee or transferees a new Debenture or
Debentures of the same series as the Debenture presented for a like aggregate
principal amount.
<PAGE>
15
All Debentures presented or surrendered for exchange or registration
of transfer, as provided in this Section, shall be accompanied (if so required
by the Company or the Debenture Registrar) by a written instrument or
instruments of transfer, in form satisfactory to the Company or the Debenture
Registrar, duly executed by the registered holder or by his duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or registration
of transfer of Debentures, or issue of new Debentures in case of partial
redemption of any series, but the Company may require payment by the
Debentureholder requesting an exchange or registration of transfer of a sum
sufficient to cover any tax or other governmental charge in relation thereto,
other than in connection with exchanges made pursuant to Section 2.06, Section
3.03(b) and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, register the
transfer of or exchange any Debentures of a series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of all or less than all of the outstanding Debentures of such series
and ending at the close of business on the day of such mailing or (ii) register
the transfer of or exchange any Debentures so selected for redemption, in whole
or in part, except the unredeemed portion of any Debentures being redeemed in
part. The provisions of this Section 2.05 are, with respect to any Global
Debenture, subject to Section 2.11.
SECTION 2.06. Pending the preparation of definitive Debentures of any
series, the Company may execute, and the Trustee shall authenticate and make
available for delivery, temporary Debentures (printed, lithographed or
typewritten) of any authorized denomination, and substantially in the form of
the definitive Debentures in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Debentures, all as may be determined by the Company. Every temporary Debenture
of any series shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Debentures of such series. Without unnecessary
delay the Company will execute and will furnish definitive Debentures of such
series and thereupon any or all temporary Debentures of such series may be
surrendered in exchange therefor (without charge to the holders), at the office
or agency of the Company designated for the purpose in the Borough of Manhattan,
the City and State of New York, and the Trustee
<PAGE>
16
shall authenticate and such office or agency shall make available for delivery
in exchange for such temporary Debentures an equal aggregate principal amount of
definitive Debentures of such series, unless the Company advises the Trustee to
the effect that definitive Debentures need not be executed and furnished until
further notice from the Company. Until so exchanged, the temporary Debentures of
such series shall be entitled to the same benefits under this Indenture as
definitive Debentures of such series authenticated and delivered hereunder.
SECTION 2.07. In case any temporary or definitive Debenture shall
become mutilated or be destroyed, lost or stolen, the Company (subject to the
next succeeding sentence) shall execute, and upon its request the Trustee
(subject as aforesaid) shall authenticate and make available for delivery, a new
Debenture of the same series bearing a number not contemporaneously Outstanding,
in exchange and substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company and to the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and to the Trustee evidence to their
satisfaction of the destruction, loss or theft of the applicant's Debenture and
of the ownership thereof. The Trustee may authenticate any such substituted
Debenture and make available for delivery the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Debenture, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith. In case any Debenture which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Debenture, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Debenture) if
the applicant for such payment shall furnish to the Company and to the Trustee
such security or indemnity as they may require to save each of them harmless,
and, in case of destruction, loss or theft, evidence to the satisfaction of the
Company and the Trustee of the destruction, loss or theft of such Debenture and
of the ownership thereof.
Every Debenture issued pursuant to the provisions of this Section in
substitution for any Debenture which is mutilated, destroyed, lost or stolen
shall constitute an
<PAGE>
17
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Debenture shall be found at any time, or be enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures of the same series duly issued
hereunder. All Debentures shall be held and owned upon the express condition
that the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debentures, and shall preclude
(to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.08. All Debentures surrendered for the purpose of payment,
redemption, exchange or registration of transfer shall, if surrendered to the
Company or any paying agent, be delivered to the Trustee for cancellation, or,
if surrendered to the Trustee, shall be canceled by it, and no Debentures shall
be issued in lieu thereof except as expressly required or permitted by any of
the provisions of this Indenture. On written request of the Company, the
Trustee shall deliver to the Company canceled Debentures held by the Trustee.
If the Company shall otherwise acquire any of the Debentures, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Debentures unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.09. Nothing in this Indenture or in the Debentures, express
or implied, shall give or be construed to give to any Person, other than the
parties hereto and the holders of the Debentures, any legal or equitable right,
remedy or claim under, or in respect of, this Indenture, or under any covenant,
condition or provision herein contained; all such covenants, conditions and
provisions being for the sole benefit of the parties hereto and of the holders
of the Debentures.
SECTION 2.10. So long as any of the Debentures of any series remain
Outstanding there may be an Authenticating Agent for any or all such series of
Debentures which the Trustee shall have the right to appoint. Said
Authenticating Agent shall be authorized to act on behalf of the Trustee to
authenticate Debentures of such series issued upon exchange, transfer or partial
redemption thereof, and Debentures so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. All references in this Indenture to
the
<PAGE>
18
authentication of Debentures by the Trustee shall be deemed to include
authentication by an Authenticating Agent for such series except for
authentication upon original issuance or pursuant to Section 2.07 hereof. Each
Authenticating Agent shall be acceptable to the Company and shall be a
corporation which has a combined capital and surplus, as most recently reported
or determined by it, sufficient under the laws of any jurisdiction under which
it is organized or in which it is doing business to conduct a trust business,
and which is otherwise authorized under such laws to conduct such business and
is subject to supervision or examination by Federal or state authorities. If at
any time any Authenticating Agent shall cease to be eligible in accordance with
these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time (and upon request by the Company shall) terminate the agency of any
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company. Upon resignation, termination or
cessation of eligibility of any Authenticating Agent, the Trustee may appoint an
eligible successor Authenticating Agent acceptable to the Company. Any successor
Authenticating Agent, upon acceptance of its appointment hereunder, shall become
vested with all the rights, powers and duties of its predecessor hereunder as if
originally named as an Authenticating Agent pursuant hereto.
SECTION 2.11. (a) If, pursuant to Section 2.01, the Company shall
establish that the Debentures of a particular series are to be issued as one or
more Global Debentures, then the Company shall execute, and the Trustee shall,
in accordance with Section 2.04, authenticate and deliver, one or more Global
Debentures which (i) shall represent, and shall be denominated in an aggregate
amount equal to the aggregate principal amount of, all of the Outstanding
Debentures of such series, (ii) shall be registered in the name of the
Depositary or its nominee, (iii) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Except as otherwise provided in
Section 2.11 of the Indenture, this Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary or to a successor
Depositary or to a nominee of such successor Depositary."
(b) Notwithstanding the provisions of Section 2.05, the Global
Debenture of a series may be transferred, in whole but not in part and in the
manner
<PAGE>
19
provided in Section 2.05, only to another nominee of the Depositary for such
series, or to a successor Depositary for such series selected or approved by the
Company or to a nominee of such successor Depositary.
(c) If at any time the Depositary for a series of Debentures notifies
the Company that it is unwilling or unable to continue as Depositary for such
series or if at any time the Depositary for such series shall no longer be
registered, or in good standing, under the Exchange Act or other applicable
statute or regulation and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, this Section 2.11 shall
no longer be applicable to the Debentures of such series, and the Company will
execute, and subject to Section 2.05, the Trustee will authenticate and make
available for delivery, Debentures of such series in definitive registered form
without coupons, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of the Global Debenture of such series in
exchange for such Global Debenture. In addition, the Company may at any time
determine that the Debentures of any series shall no longer be represented by
one or more Global Debentures and that the provisions of this Section 2.11 shall
no longer apply to the Debentures of such series. In such event, the Company
will execute and, subject to Section 2.05, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company, will
authenticate and deliver Debentures of such series in definitive registered
form, without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture of such
series in exchange for such Global Debenture. Upon the exchange of a Global
Debenture for such Debentures in definitive registered form, without coupons, in
authorized denominations, the Global Debenture shall be canceled by the Trustee.
Any Debentures in definitive registered form issued in exchange for a Global
Debenture pursuant to this Section 2.11(c) shall be registered in such names and
in such authorized denominations as the Depositary, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Debentures to the Depositary for
delivery to the persons in whose names such Debentures are so registered.
(d) None of the Company, the Trustee, any paying agent or the
security registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of the beneficial ownership
<PAGE>
20
interests of a Global Debenture or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Debentures
--------------
may use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee
shall use CUSIP numbers or CINS numbers, as the case may be, in notices of
redemption or exchange as a convenience to Debentureholders but no
representation shall be made by the Company, the Trustee or any other Person as
to the correctness of such numbers either as printed on the Debentures or as
contained in any notice of redemption or exchange.
ARTICLE III
Redemption of Debentures and
----------------------------
Sinking Fund Provisions
-----------------------
SECTION 3.01. The Company may redeem the Debentures of any series
issued hereunder on and after the dates and in accordance with the terms
established for such series pursuant to Section 2.01.
SECTION 3.02. (a) In case the Company shall desire to exercise such
right to redeem all or, as the case may be, a portion of the Debentures of any
series in accordance with the right reserved so to do, it shall give notice of
such redemption by mail, first class postage prepaid, not less than 30 nor more
than 60 days before the date fixed for redemption to holders of the Debentures
of the series to be redeemed at their last addresses as they shall appear upon
the Debenture Register. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the registered holder receives the notice. In any case, failure duly to give
such notice to the holder of any Debenture of any series designated for
redemption in whole or in part, or any defect in the notice, shall not affect
the validity of the proceedings for the redemption of any other Debentures of
such series or any other series. In the case of any redemption of Debentures
prior to the expiration of any restriction on such redemption provided in the
terms of such Debentures or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with any
such restriction.
Each such notice of redemption (which shall be irrevocable) shall
specify the date fixed for redemption and the redemption price at which
Debentures of that series are
<PAGE>
21
to be redeemed, and shall state that payment of the redemption price of such
Debentures to be redeemed will be made at the office or agency of the Company in
the Borough of Manhattan, the City and State of New York, upon presentation and
surrender of such Debentures, that interest accrued to the date fixed for
redemption will be paid as specified in said notice, that from and after said
date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Debentures of a series are to be
redeemed, the notice to the holders of Debentures of that series to be redeemed
in whole or in part shall specify the particular Debentures to be so redeemed.
In case any Debenture is to be redeemed in part only, the notice which relates
to such Debenture shall state the portion of the principal amount thereof to be
redeemed and shall state that, on and after the redemption date, upon surrender
of such Debenture, a new Debenture or Debentures of such series in principal
amount equal to the unredeemed portion thereof will be issued. If the Company
gives a notice of redemption in respect of Debentures of a series, then, by
12:00 noon, New York City time, on the date fixed for redemption, the Company
shall deposit irrevocably with the Trustee funds sufficient to pay the
applicable redemption price and shall give irrevocable instructions and
authority to pay such redemption price to the holders of Debentures of such
series.
(b) If less than all the Debentures of a series are to be redeemed,
the Company shall give the Trustee at least 45 days notice in advance of the
date fixed for redemption (unless a shorter notice shall be satisfactory to the
Trustee) as to the aggregate principal amount of Debentures of the series to be
redeemed, and thereupon the Trustee shall select, by lot or in any other manner
as it shall deem appropriate and fair in its discretion and which may provide
for the selection of a portion or portions (equal to $[ ] or any integral
multiple thereof) of the principal amount of such Debentures of a denomination
larger than $[ ], the Debentures to be redeemed and shall thereafter promptly
notify the Company in writing of the numbers of the Debentures to be redeemed,
in whole or in part.
The Company may, if and whenever it shall so elect in accordance with
the terms of any series of Debentures established pursuant to Section 2.01, by
delivery of instructions signed on its behalf by its President or any Vice
President, instruct the Trustee or any paying agent to call all or any part of
the Debentures of a particular series for redemption and to give notice of
redemption in the manner set forth in this Section, such notice to be in
<PAGE>
22
the name of the Company or its own name as the Trustee or such paying agent may
deem advisable. In any case in which notice of redemption is to be given by the
Trustee or any such paying agent, the Company shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying agent, as the
case may be, such Debenture Register, transfer books or other records or
suitable copies or extracts therefrom, sufficient to enable the Trustee or such
paying agent to give any notice by mail that may be required under the
provisions of this Section.
SECTION 3.03. (a) If the giving of notice of redemption shall have
been completed as above provided, the Debentures or portions of Debentures of
the series to be redeemed specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to but not including the date fixed for
redemption and interest on such Debentures or portions of Debentures shall cease
to accrue on and after the date fixed for redemption, unless the Company shall
default in the payment of such redemption price and accrued interest with
respect to any such Debenture or portion thereof. On presentation and surrender
of such Debentures on or after the date fixed for redemption at the place of
payment specified in the notice, said Debentures shall be paid and redeemed at
the applicable redemption price for such series, together with interest accrued
thereon to but not including the date fixed for redemption (but if the date
fixed for redemption is after the record date with respect to an Interest
Payment Date and on or prior to such Interest Payment Date, the interest
installment payable on such Interest Payment Date shall be payable to the
registered holder at the close of business on the applicable record date
pursuant to Section 2.03).
(b) Upon presentation of any Debenture of such series which is to be
redeemed in part only, the Company shall execute and the Trustee shall
authenticate and the office or agency where the Debenture is presented shall
make available for delivery to the holder thereof, at the expense of the
Company, a new Debenture or Debentures of the same series, of authorized
denominations in principal amount equal to the unredeemed portion of the
Debenture so presented.
SECTION 3.04. The provisions of Sections 3.04, 3.05 and 3.06 shall be
applicable to any sinking fund for the retirement of Debentures of a series,
except as otherwise specified as contemplated by Section 2.01 for Debentures of
such series.
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23
The minimum amount of any sinking fund payment provided for by the
terms of Debentures of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Debentures of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Debentures for any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 3.05. Each sinking fund payment shall be applied to the
redemption of Debentures of any series as provided for by the terms of
Debentures of such series.
SECTION 3.05. The Company (i) may deliver Outstanding Debentures of a
series (other than any previously called for redemption) and (ii) may apply as a
credit Debentures of a series which have been redeemed, either at the election
of the Company pursuant to the terms of such Debentures or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Debentures, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Debentures of such series required to be made
pursuant to the terms of such Debentures as provided for by the terms of such
series; provided that such Debentures have not been previously so credited.
--------
Such Debentures shall be received and credited for such purpose by the Trustee
at the redemption price specified in such Debentures for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 3.06. Not less than 45 days prior to each sinking fund
payment date for any series of Debentures, the Company (i) will deliver to the
Trustee an Officers' Certificate specifying (x) the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of such series, and
(y) the portion thereof, if any, which is to be satisfied by delivering and
crediting Debentures of such series pursuant to Section 3.05 and the basis for
such credit and (ii) will, together with such Officers' Certificate, deliver to
the Trustee any Debentures to be so delivered. Not less than 30 days before
each such sinking fund payment date, the Trustee shall select the Debentures to
be redeemed upon such sinking fund payment date in the manner specified in
Section 3.02 and cause notice of the redemption thereof to be given in the name
and at the expense of the Company in the manner provided in Section 3.02. Such
notice having been duly given, the redemption of such Debentures shall be made
upon the terms and in the manner stated in Section 3.03.
<PAGE>
24
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
The Company covenants and agrees for each series of the Debentures as
follows:
SECTION 4.01. The Company will duly and punctually pay or cause to be
paid the principal of (and premium, if any), and interest on, the Debentures of
such series at the time and place and in the manner provided herein and
established with respect to such Debentures.
SECTION 4.02. So long as any series of the Debentures remain
Outstanding, the Company agrees to maintain an office or agency in the Borough
of Manhattan, The City and State of New York, with respect to each such series
and at such other location or locations as may be designated as provided in this
Section 4.02, where (i) Debentures of that series may be presented for payment,
(ii) Debentures of that series may be presented as hereinabove authorized for
registration of transfer and exchange, and (iii) notices and demands to or upon
the Company in respect of the Debentures of that series and this Indenture may
be given or served, such designation to continue with respect to such office or
agency until the Company shall, by written notice signed by its President or a
Vice President and delivered to the Trustee, designate some other office or
agency for any or all of such purposes. 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, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, notices and
demands.
SECTION 4.03. (a) If the Company shall appoint one or more paying
agents for all or any series of the Debentures, other than the Trustee, the
Company will cause each such paying agent to execute and deliver to the Trustee
an instrument in which such paying agent shall agree with the Trustee, subject
to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of (and premium, if any), or interest on, the
Debentures of that series (whether such sums have been paid to it by the
Company or by any other obligor of such Debentures) in trust for the
benefit of the persons entitled thereto;
<PAGE>
25
(2) that it will give the Trustee written notice of any failure by the
Company (or by any other obligor of such Debentures) to make any payment of
the principal of (and premium, if any), or interest on, the Debentures of
that series when the same shall be due and payable;
(3) that it will, at any time during the continuance of any failure
referred to in the preceding paragraph (a)(2) above, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such paying agent; and
(4) that it will perform all other duties of paying agent as set forth
in this Indenture.
(b) If the Company shall act as its own paying agent with respect to
any series of the Debentures, it will, on or before each due date of the
principal of (and premium, if any), or interest on, Debentures of that series,
set aside, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such principal (and premium, if any) or interest
so becoming due on Debentures of that series until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of such action, or any failure (by it or any other
obligor on such Debentures) to take such action. Whenever the Company shall
have one or more paying agents for any series of Debentures, it will, prior to
each due date of the principal of (and premium, if any), or interest on, any
Debentures of that series, deposit with the paying agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
(c) Anything in this Section to the contrary notwithstanding, (i) the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 11.04 and (ii) the Company may at any time, for the
purpose of obtaining the satisfaction and discharge of this Indenture or for any
other purpose, pay, or direct any paying agent to pay, to the Trustee all sums
held in trust by the Company or such paying agent, such sums to be held by the
Trustee upon the same terms and conditions as those upon which such sums were
held by the Company or such paying agent; and, upon such payment by any paying
agent to the
<PAGE>
26
Trustee, such paying agent shall be released from all further liability with
respect to such money.
SECTION 4.04. The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner provided in
Section 7.10, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.05. Additional Covenants. In the event Debentures are
---------------------
issued to a Vintage Capital Trust, for so long as any Preferred Securities
remain outstanding, the Company will not declare or pay any dividends on, or
redeem, purchase, acquire or make a distribution or liquidation payment with
respect to, any of its common stock or preferred stock or make any guarantee
payment with respect thereto if at such time (i) the Company shall be in default
with respect to its guarantee payments or other payment obligations under the
related Guaranty, (ii) there shall have occurred any Event of Default or (iii)
the Company shall have given notice of its selection of an extension period for
deferring the payment of interest on the Debentures and such period, or any
extension thereof, is continuing; provided, however, that the foregoing
-------- -------
restrictions will not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Company by way of issuance
of shares of its capital stock, (ii) any declaration of a dividend under a
shareholder rights plan or in connection with the implementation of a
shareholder rights plan, the issuance of capital stock of the Company under a
shareholder rights plan or the redemption, repurchase or exchange of any such
right distributed pursuant to a shareholder rights plan, (iii) payments of
accrued dividends by the Company upon the redemption, exchange or conversion of
any preferred stock of the Company as may be outstanding from time to time in
accordance with the terms of such preferred stock, (iv) cash payments made by
the Company in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of the Company as may be
outstanding from time to time in accordance with the terms of such preferred
stock (v) payments under a Guaranty, or (vi) purchases of common stock related
to the issuance of common stock or rights under any of the Company's benefit
plans for its directors, officers or employees, or related to the issuance of
common stock or rights under a dividend reinvestment and stock purchase plan.
In addition, in the event Debentures are issued to a Vintage Capital Trust, for
so long as any Preferred Securities remain outstanding, the Company (i) will
remain the sole direct or indirect owner of all the outstanding Common
Securities and shall not cause or permit the Common Securities to be transferred
except to the extent such transfer is permitted under Section 9.01(c) of the
Declaration of Trust, provided that any permitted successor of the Company under
the Indenture may succeed to the Company's ownership of the Common Securities;
(ii) will comply fully with its obligations and agreements under the Declaration
of Trust; and (iii) not take any action which would cause the Vintage Capital
Trust to cease to be treated as a grantor trust for United States Federal income
tax purposes, except in connection with a distribution of Debentures as provided
in the Declaration of Trust.
ARTICLE V
Debentureholders Lists and Reports
----------------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. The Company will furnish or cause to be furnished to
the Trustee (a) on a monthly basis on each regular record date (as defined in
Section 2.03) a list, in such form as the Trustee may reasonably require, of the
names and addresses of the holders of each series of Debentures as of such
regular record date; provided that the Company shall not be obligated to furnish
--------
or cause to be furnished such list at any time that the list shall not differ in
any respect from the most recent list furnished to the Trustee by the Company
and (b) at such other times as the Trustee may request in writing within 30 days
after the receipt by the Company of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished; provided, however, that no such list need be furnished for any series
-------- -------
for which the Trustee shall be the Debenture Registrar.
SECTION 5.02. (a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as to the names and addresses of
the holders of Debentures contained in the most recent list furnished to it as
provided in Section 5.01 and as to the names and addresses of holders of
Debentures received by the Trustee in its capacity as Debenture Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in
Section 5.01 upon receipt of a new list so furnished.
(c) In case three or more holders of Debentures of a series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Debenture for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other holders of
<PAGE>
27
Debentures of such series or holders of all Debentures with respect to their
rights under this Indenture or under such Debentures, and such application is
accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall within five business days
after the receipt of such application, at its election, either:
(1) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 5.02; or
(2) inform such applicants as to the approximate number of holders of
Debentures of such series or of all Debentures, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 5.02, and as to the approximate cost of mailing to such
Debentureholders the form of proxy or other communication, if any,
specified in such application.
(d) If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request of such
applicants, mail to each holder of such series or of all Debentures, as the case
may be, whose name and address appears in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 5.02, a copy of the form of proxy or other communication which is
specified in the application of such applicants received pursuant to subsection
(c) of this Section 5.02, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Securities and Exchange Commission (the "Commission"), together with a copy of
the material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best interests of
the holders of Debentures of such series or of all Debentures, as the case may
be, or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
<PAGE>
28
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Debentureholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise, the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(e) Each and every holder of the Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any paying agent nor any Debenture Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the holders of Debentures in accordance with the provisions of
this Section, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under this Section.
SECTION 5.03. (a) The Company covenants and agrees to file with the
Trustee, within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then to
file with the Trustee and the Commission in accordance with the rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange, as may be prescribed
from time to time in such rules and regulations. Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein, including the Company's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as
<PAGE>
29
may be required from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by mail, first class
postage prepaid, or by reputable overnight delivery service which provides for
evidence of receipt, to the Debentureholders, as their names and addresses
appear upon the Debenture Register, within 30 days after the filing thereof with
the Trustee, such summaries of any information, documents and reports required
to be filed by the Company pursuant to subsections (a) and (b) of this Section
as may be required by rules and regulations prescribed from time to time by the
Commission.
(d) The Company covenants and agrees to furnish to the Trustee, on or
before May 15 in each calendar year in which any of the Debentures are
Outstanding, or on or before such other day in each calendar year as the Company
and the Trustee may from time to time agree upon, a Certificate of the principal
executive officer, principal financial officer, or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 5.04. (a) On or before July 15 in each year in which any of
the Debentures are Outstanding, the Trustee shall transmit by mail, first class
postage prepaid, to the Debentureholders, as their names and addresses appear
upon the Debenture Register, a brief report dated as of the preceding May 15,
with respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of, or any material change to, a relationship
specified in paragraphs (1) through (10) of subsection (c) of Section 7.08;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the
<PAGE>
30
Debentures, on any property or funds held or collected by it as Trustee if
such advances so remaining unpaid aggregate more than 1/2 of 1% of the
principal amount of the Debentures outstanding, determined in accordance
with Section 8.04, on the date of such report;
(4) any change to the amount, interest rate, and maturity date of all
other indebtedness owing by the Company, or by any other obligor on the
Debentures, to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in paragraph (2), (3), (4) or
(6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject to
the lien of this Indenture (and the consideration thereof, if any) which it
has not previously reported;
(7) any additional issue of Debentures which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Debentures or the Debentures of any series,
except any action in respect of a default, notice of which has been or is
to be withheld by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit by mail, first class postage prepaid,
to the Debentureholders, as their names and addresses appear upon the Debenture
Register, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee as such since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Debentures of any series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection if such advances remaining unpaid at any time
<PAGE>
31
aggregate more than 10% of the principal amount of Debentures of such series
outstanding, determined in accordance with Section 8.04, at such time, such
report to be transmitted within 90 days after such advances.
(c) A copy of each such report shall, at the time of such
transmission to Debentureholders, be filed by the Trustee with the Company, with
each stock exchange upon which any Debentures are listed (if so listed) and also
with the Commission. The Company agrees to notify the Trustee when any
Debentures become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE TRUSTEE AND
DEBENTUREHOLDERS ON EVENT OF DEFAULT
SECTION 6.01. (a) Whenever used herein with respect to Debentures of
a particular series, "Event of Default" means any one or more of the following
events which has occurred and is continuing:
(1) default in the payment of any installment of interest upon any of
the Debentures of that series, as and when the same shall become due and
payable, and continuance of such default for a period of 90 days; provided,
however, that a valid extension of an interest payment period by the
Company in accordance with the terms of any indenture supplemental hereto,
shall not constitute a default in the payment of interest;
(2) default in the payment of the principal of (or premium, if any,
on) any of the Debentures of that series as and when the same shall become
due and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series;
(3) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company with
respect to that series contained in such Debentures or otherwise
established with respect to that series of Debentures pursuant to Section
2.01 or contained in this Indenture (other than a covenant or agreement
which has been expressly established solely for the benefit of one or more
series of Debentures other than such series) for a period of 90 days after
the date on which written
<PAGE>
32
notice of such failure, requiring the same to be remedied and stating that
such notice is a "Notice of Default" hereunder, shall have been given to
the Company by the Trustee, by registered or certified mail, or to the
Company and the Trustee by the holders of at least 25% in principal amount
of the Debentures of that series at the time outstanding, determined in
accordance with Section 8.04;
(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(5) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing of
such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such
action.
<PAGE>
33
(b) If an Event of Default occurs and is continuing with respect to
Debentures of a particular series, unless the principal of all the Debentures of
such series shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debentures of
that series then outstanding hereunder, determined in accordance with Section
8.04, by notice in writing to the Company (and to the Trustee if given by such
Debentureholders), may declare the principal of all the Debentures of that
series to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything contained in
this Indenture or in the Debentures of that series or established with respect
to that series pursuant to Section 2.01 to the contrary notwithstanding.
(c) Section 6.01(b), however, is subject to the condition that if, at
any time after the principal of the Debentures of a series shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Debentures of such series and the
principal of (and premium, if any, on) any and all Debentures of that series
which shall have become due otherwise than by acceleration (with interest upon
such principal (and premium, if any), and, to the extent that such payment is
enforceable under applicable law, upon overdue installments of interest, at the
rate per annum expressed in the Debentures of such series to the date of such
payment or deposit) and the amount payable to the Trustee under Section 7.06,
and any and all defaults under the Indenture, other than the nonpayment of
principal on Debentures of such series which shall not have become due by their
terms, shall have been remedied or waived as provided in Section 6.06, then the
holders of a majority in aggregate principal amount of the Debentures of such
series then outstanding, determined in accordance with Section 8.04, (subject
to, in the case of any series of Debentures held as trust assets of a Vintage
Petroleum Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of the holders of the Preferred Securities
and the Common Securities of such Vintage Petroleum Capital Trust as may be
required under the Declaration of Trust of such Vintage Petroleum Capital
Trust), by written notice to the Company and to the Trustee, may rescind and
annul such declaration and its consequences with respect to such series of
Debentures; but no such rescission and annulment shall extend to or shall affect
any
<PAGE>
34
subsequent default, or shall impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right
with respect to Debentures of a series under this Indenture and such proceedings
shall have been discontinued or abandoned because of rescission or annulment as
provided in (c) above or for any other reason or shall have been determined
adversely to the Trustee, then the Company and the Trustee shall be restored to
their former respective positions and rights hereunder, and all rights, remedies
and powers of the Company and the Trustee shall continue as though no such
proceedings had been taken.
(e) If, prior to a Security Exchange with respect to the Debentures
of any series, a Default with respect to the Debentures of such series shall
have occurred, the Company expressly acknowledges that under the circumstances
set forth in the applicable Declaration of Trust, any holder of Preferred
Securities of the applicable Vintage Petroleum Capital Trust may, to the extent
permitted by applicable law, enforce directly against the Company the applicable
Property Trustee's rights hereunder. In furtherance of the foregoing and for
the avoidance of any doubt, the Company acknowledges that, under the
circumstances described in the applicable Declaration of Trust, any such holder
of Preferred Securities, in its own name, in the name of the applicable Vintage
Petroleum Capital Trust or in the name of the holders of the Preferred
Securities issued by such Vintage Petroleum Capital Trust, may institute or
cause to be instituted a proceeding, including, without limitation, any suit in
equity, an action at law or other judicial or administrative proceeding, to
enforce the applicable Property Trustee's rights hereunder directly against the
Company as issuer of the applicable series of Debentures, and may prosecute such
proceeding to judgment or final decree, and enforce the same against the
Company.
SECTION 6.02. (a) The Company covenants that (1) in case default
shall be made in the payment of any installment of interest on any of the
Debentures of a series, or any payment required by any sinking or analogous fund
established with respect to such series as and when the same shall have become
due and payable, and such default shall have continued for a period of 30 days,
or (2) in case default shall be made in the payment of the principal of (or
premium, if any, on) any of the Debentures of a series when the same shall have
become due and payable, whether upon maturity of the Debentures of a series or
upon redemption or upon declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the
<PAGE>
35
benefit of the holders of the Debentures of such series, the whole amount that
then shall have become due and payable on all Debentures of such series for
principal (and premium, if any) or interest, or both, as the case may be, with
interest upon the overdue principal (and premium, if any) and (to the extent
that payment of such interest is enforceable under applicable law and without
duplication of any other amounts paid by the Company in respect thereof) upon
overdue installments of interest at the rate per annum expressed in the
Debentures of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, and the
amount payable to the Trustee under Section 7.06.
(b) In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law or
in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or other obligor upon the
Debentures of such series and collect in the manner provided by law out of the
property of the Company or other obligor upon the Debentures of such series
wherever situated the moneys adjudged or decreed to be payable.
(c) In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, readjustment, arrangement, composition or other judicial
proceedings affecting the Company, any other obligor on the Debentures of any
series, or the creditors or property of either, the Trustee shall have the power
to intervene in such proceedings and take any action therein that may be
permitted by the court and shall (except as may be otherwise provided by law) be
entitled to file such proofs of claim and other papers and documents as may be
necessary or advisable in order to have the claims of the Trustee and of the
holders of Debentures of such series allowed for the entire amount due and
payable by the Company or such other obligor under the Indenture at the date of
institution of such proceedings and for any additional amount which may become
due and payable by the Company or such other obligor after such date, and to
collect and receive any moneys or other property payable or deliverable on any
such claim, and to distribute the same after the deduction of the amount payable
to the Trustee under Section 7.06; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the holders of
Debentures of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of
<PAGE>
36
such payments directly to such Debentureholders, to pay to the Trustee any
amount due it under Section 7.06.
(d) All rights of action and of asserting claims under this
Indenture, or under any of the terms established with respect to Debentures of
any series, may be enforced by the Trustee without the possession of any of such
Debentures, or the production thereof at any trial or other proceeding relative
thereto, and any such suit or proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for payment to the Trustee of any amounts due
under Section 7.06, be for the ratable benefit of the holders of the Debentures
of such series.
In case of an Event of Default hereunder, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Debentureholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures of any series or the rights of any holder thereof or to authorize the
Trustee to vote in respect of the claim of any Debentureholder in any such
proceeding.
SECTION 6.03. Any moneys collected by the Trustee pursuant to Section
6.02 with respect to a particular series of Debentures shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, upon presentation of the Debentures of such series, and stamping
thereon the payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST: To the payment of costs and expenses of collection and of all
amounts payable to the Trustee under Section 7.06;
<PAGE>
37
SECOND: To the payment of the amounts then due and unpaid upon
Debentures of such series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Debentures for principal (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 6.04. No holder of any Debenture of any series shall have any
right by virtue or by availing of any provision of this Indenture to institute
any suit, action or proceeding in equity or at law upon or under or with respect
to this Indenture or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof
with respect to Debentures of such series specifying such Event of Default, as
hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Debentures of such series then outstanding,
determined in accordance with Section 8.04, shall have made written request upon
the Trustee to institute such action, suit or proceeding in its own name as
trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have failed to institute any
such action, suit or proceeding; it being understood and intended, and being
expressly covenanted by the holders and the Trustee, that no one or more holders
of Debentures of such series shall have any right in any manner whatsoever by
virtue or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other of such Debentures, or to
obtain or seek to obtain priority over or preference to any other such holder,
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all holders of
Debentures of such series. For the protection and enforcement of the provisions
of this Section, each and every Debentureholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions of this Indenture, however, the
right of any holder of any Debenture to receive payment of the principal of (and
premium, if any)
<PAGE>
38
and interest on such Debenture, as therein provided, on or after the respective
due dates expressed in such Debenture (or in the case of redemption, on the
redemption date), or to institute suit for the enforcement of any such payment
on or after such respective dates or redemption date, shall not be impaired or
affected without the consent of such holder. In addition, as set forth in the
Declaration, any holder of Preferred Securities shall have the right to
institute suit for the enforcement of any such payment to such holder with
respect to Debentures having a principal amount equal to the aggregate
liquidation preference of the Preferred Securities held by such holder.
SECTION 6.05. (a) All powers and remedies given by this Article to
the Trustee or to the Debentureholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any others thereof or of any other powers
and remedies available to the Trustee or the holders of the Debentures, by
judicial proceedings or otherwise, to enforce performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to such Debentures.
(b) No delay or omission by the Trustee or by any holder of any of
the Debentures to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power, or
shall be construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article or by law to the Trustee or to the Debentureholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Debentureholders.
SECTION 6.06. The holders of a majority in aggregate principal amount
of the Debentures of any series at the time outstanding, determined in
accordance with Section 8.04 (with, in the case of any series of Debentures held
as trust assets of a Vintage Petroleum Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of holders of the
Preferred Securities and the Common Securities of such Vintage Petroleum Capital
Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust), shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to such
series; provided, however, that such direction shall not be in conflict with any
-------- -------
rule of law or with this Indenture or unduly prejudicial
<PAGE>
39
to the rights of holders of Debentures of any other series at the time
outstanding (determined in accordance with Section 8.04) and not parties
thereto. Subject to the provisions of Section 7.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceeding so directed would involve the Trustee in personal
liability. The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding, determined in accordance with
Section 8.04, affected thereby (with, in the case of any series of Debentures
held as trust assets of a Vintage Petroleum Capital Trust and with respect to
which a Security Exchange has not theretofore occurred, such consent of holders
of the Preferred Securities and the Common Securities of such Vintage Petroleum
Capital Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust), may, on behalf of the holders of all of the Debentures
of such series, waive any past default in the performance of any of the
covenants contained herein or established pursuant to Section 2.01 with respect
to such series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest on, any of the Debentures of such
series as and when the same shall become due (x) by the terms of such Debentures
otherwise than by acceleration (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal and any
premium has been deposited with the Trustee (in accordance with Section 6.01(c))
or (y) as a result of a call for redemption of Debentures of such series. Upon
any such waiver, the default covered thereby shall be deemed to be cured for all
purposes of this Indenture and the Company, the Trustee and the holders of the
Debentures of such series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 6.07. The Trustee shall, within 90 days after the occurrence
of a default with respect to a particular series, transmit by mail, first-class
postage prepaid, to the holders of Debentures of such series, as their names and
addresses appear upon the Debenture Register, notice of all defaults with
respect to such series known to the Trustee, unless such defaults shall have
been cured before the giving of such notice (the term "defaults" for the purpose
of this Section being hereby defined to be the events specified in subsections
(1), (2), (3), (4) and (5) of Section 6.01(a), not including any periods of
grace provided for therein and irrespective of the giving of
<PAGE>
40
notice provided for by subsection (3) of Section 6.01(a)); provided that, except
--------
in the case of default in the payment of the principal of (or premium, if any),
or interest on, any of the Debentures of such series or in the payment of any
sinking fund installment established with respect to such series, the Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors, the executive committee, or a trust committee of directors and/or
Responsible Officers, of the Trustee in good faith determine that the
withholding of such notice is in the interests of the holders of Debentures of
such series; provided further, however, that, in the case of any default of the
-------- ------- -------
character specified in Section 6.01(a)(3) with respect to Debentures of such
series, no such notice to the holders of the Debentures of such series shall be
given until at least 90 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any default,
except (i) a default under subsection (a)(1) or (a)(2) of Section 6.01 as long
as the Trustee is acting as paying agent for such series of Debentures or (ii)
any default as to which the Trustee shall have received written notice or a
Responsible Officer shall have obtained written notice.
SECTION 6.08. All parties to this Indenture agree, and each holder of
any Debentures by his or her acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, 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 Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Trustee, or by any Debentureholder, or group of Debentureholders, holding more
than 10% in aggregate principal amount of the Debentures of any series at the
time outstanding, determined in accordance with Section 8.04, or to any suit
instituted by any Debentureholder for the enforcement of the payment of the
principal of (premium, if any), or interest on, any Debenture of such series, on
or after the respective due dates expressed in such Debenture or established
pursuant to this Indenture.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or
<PAGE>
41
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. (a) The Trustee, prior to the occurrence of an Event
of Default with respect to Debentures of a series and after the curing of all
Events of Default with respect to Debentures of that series which may have
occurred, shall undertake to perform with respect to Debentures of such series
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against
the Trustee. In case an Event of Default with respect to Debentures of a series
has occurred (which has not been cured or waived), the Trustee shall exercise
with respect to Debentures of that series such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(1) prior to the occurrence of an Event of Default with respect to
Debentures of a series and after the curing or waiving of all such Events
of Default which may have occurred with respect to such series:
(i) the duties and obligations of the Trustee shall with respect
to Debentures of such series be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable with
respect to Debentures of such series except for the performance of
such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations
<PAGE>
42
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may with respect to Debentures of such series conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining
the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of a majority in principal amount of the Debentures of any
series at the time outstanding, determined in accordance with Section 8.04,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee under this Indenture with respect to the Debentures of
such series;
(4) none of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to it; and
(5) whether or not therein expressly so provided, every provision of
this Indenture relating to the
<PAGE>
43
conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Article VII.
SECTION 7.02. Except as otherwise provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Board Resolution or an
instrument signed in the name of the Company by the Chairman or the Vice
Chairman of the Board of Directors or the President or any Vice President
and by the Secretary or any Assistant Secretary or the Treasurer or any
Assistant Treasurer or the Controller or any Assistant Controller (unless
other evidence in respect thereof is specifically prescribed herein);
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may in the absence of bad faith
on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken or
suffered or omitted hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligations to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Debentureholders, pursuant to the provisions of
this Indenture, unless such Debentureholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing herein
contained shall, however, relieve the Trustee of the obligation, upon the
occurrence of an Event of
<PAGE>
44
Default with respect to a series of the Debentures (which has not been
cured or waived) to exercise with respect to Debentures of that series such
of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs;
(f) the Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(g) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, security, or other papers or documents, unless requested in writing
so to do by the holders of not less than a majority in principal amount of
the Debentures of the particular series outstanding affected thereby,
determined in accordance with Section 8.04; provided, however, that if the
-------- -------
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities as
a condition to so proceeding. The reasonable expense of every such
examination shall be paid by the Company or, if paid by the Trustee, shall
be repaid by the Company upon demand; if the Trustee makes such
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(h) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 7.03. (a) The recitals contained herein and in the
Debentures (other than the Certificate of Authentication on the Debentures)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same.
<PAGE>
45
(b) The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debentures.
(c) The Trustee shall not be accountable for the use or application
by the Company of any of the Debentures or of the proceeds of such Debentures,
or for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any paying
agent other than the Trustee.
SECTION 7.04. The Trustee or any paying agent or Debenture Registrar,
in its individual or any other capacity, may become the owner or pledgee of
Debentures with the same rights it would have if it were not Trustee, paying
agent or Debenture Registrar.
SECTION 7.05. Subject to the provisions of Section 11.04, all moneys
received by the Trustee shall until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree with the Company to pay thereon.
SECTION 7.06. (a) The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trusts hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and the
Company will pay or reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to hold it harmless against, any loss, liability or expense
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred without negligence or bad faith on the part of
the Trustee and
<PAGE>
46
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in the premises.
(b) The obligations of the Company under this Section to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Debentures upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of particular
Debentures.
(c) When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(4) or (5), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
(d) The Company's obligations under this Section 7.06 shall survive
the resignation or removal of any Trustee, the discharge of the Company's
obligations pursuant to Article XI of this Indenture and/or the termination of
this Indenture.
SECTION 7.07. Except as otherwise provided in Section 7.01, whenever
in the administration of the provisions of this Indenture the Trustee shall deem
it necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting to take any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence or bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officers' Certificate delivered to the
Trustee and such certificate, in the absence of negligence or bad faith on the
part of the Trustee, shall be full warrant to the Trustee for any action taken,
suffered or omitted to be taken by it under the provisions of this Indenture in
reliance thereon.
SECTION 7.08. (a) If the Trustee has or shall acquire any
conflicting interest, as defined in Section 310(b) of the Trust Indenture Act,
with respect to the Debentures of any series and if the Default to which such
conflicting interest relates has not been cured, duly waived or otherwise
eliminated, within 90 days after ascertaining that it has such conflicting
interest, it shall either eliminate such conflicting interest, except as
<PAGE>
47
otherwise provided herein, or resign with respect to the Debentures of such
series in the manner and with the effect specified in Section 7.10 and the
Company shall promptly appoint a successor Trustee in the manner provided
herein.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, with respect to the Debentures of
any series the Trustee shall, within ten days after the expiration of such 90-
day period, transmit notice of such failure by mail, first-class postage
prepaid, to the Debentureholders of such series as their names and addresses
appear upon the Debenture Register.
(c) Except in the case of a default in the payment of the principal
of (or premium, if any), or interest on, any Debentures issued under this
Indenture, or in the payment of any sinking or analogous fund installment, the
Trustee shall not be required to resign as provided by this Section 7.08 if such
Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that (i) the default under
the Indenture may be cured or waived during a reasonable period and under the
procedures described in such application and (ii) a stay of the Trustee's duty
to resign will not be inconsistent with the interests of Debentureholders. The
filing of such an application shall automatically stay the performance of the
duty to resign until the Commission orders otherwise.
Any resignation of the Trustee shall become effective only upon the
appointment of a successor trustee and such successor's acceptance of such an
appointment.
SECTION 7.09. There shall at all times be a Trustee with respect to
the Debentures issued hereunder which shall at all times be a corporation
organized and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a corporation
or other person permitted to act as trustee by the Commission, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least 50 million dollars, and subject to supervision or
examination by Federal, State, Territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report
<PAGE>
48
of condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the Company,
serve as Trustee. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. (a) The Trustee or any successor hereafter appointed
may at any time resign with respect to the Debentures of one or more series by
giving written notice thereof to the Company and by transmitting notice of
resignation by mail, first class postage prepaid, to the Debentureholders of
such series, as their names and addresses appear upon the Debenture Register.
Upon receiving such notice of resignation, the Company shall promptly appoint a
successor trustee with respect to Debentures of such series by written
instrument, in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the resigning Trustee and one copy to
the successor trustee. If no successor trustee shall have been so appointed and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee with respect to
Debentures of such series, or any Debentureholder of that series who has been a
bona fide holder of a Debenture or Debentures for at least six months may,
subject to the provisions of Section 6.08, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Debentureholder who has been a bona fide holder of a
Debenture or Debentures for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Debentureholder; or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a
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49
receiver of the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, the Company may remove the Trustee
with respect to all Debentures and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee. If no successor trustee shall have been
so appointed and have accepted appointment within 30 days after the mailing
of such notice of removal, the Trustee so removed may petition any court of
competent jurisdiction for the appointment of a successor trustee with
respect to Debentures of such series, or any Debentureholder of that series
who has been a bona fide holder of a Debenture or Debentures for at least
six months may, subject to the provisions of Section 6.08, on behalf of
himself and all others similarly situated, petition any such court for the
removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Debentures of any series at the time outstanding, determined in accordance with
Section 8.04, may at any time remove the Trustee with respect to such series and
appoint a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee with respect to the Debentures of a series pursuant to any of
the provisions of this Section shall become effective upon acceptance of
appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be
appointed with respect to the Debentures of one more series or all such series,
but at any time there shall be only one Trustee with respect to the Debentures
of any particular series.
SECTION 7.11. (a) In case of the appointment hereunder of a
successor trustee with respect to all Debentures, such successor trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor trustee, such retiring
<PAGE>
50
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor trustee all the rights, powers, and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee with
respect to the Debentures of one or more (but not all) series, the Company, the
retiring Trustee and each successor trustee with respect to the Debentures of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Debentures of that
or those series to which the appointment of such successor trustee relates, (2)
shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debentures of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee and that no Trustee shall be responsible for any act or
failure to act on the part of any other Trustee hereunder; and upon the
execution and delivery of such supplemental indenture the resignation or removal
of the retiring Trustee shall become effective to the extent provided therein,
such retiring Trustee shall with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture, and each such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Debentures of that or those
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51
series to which the appointment of such successor trustee relates; but, on
request of the Company or any successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such successor trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder with respect to the Debentures of that or those
series to which the appointment of such successor trustee relates, subject, to
the lien, if any, of the retiring Trustee provided for in Section 7.06.
(c) Upon request of any such successor trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in, and
confirming to, such successor trustee all such rights, power and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the
time of such acceptance such successor trustee shall be qualified and eligible
under this Article.
(e) Upon acceptance of appointment by a successor trustee as provided
in this Section, the Company shall transmit notice of the succession of such
trustee hereunder by mail, first class postage prepaid, to the Debentureholders,
as their names and addresses appear upon the Debenture Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
transmitted at the expense of the Company.
SECTION 7.12. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be qualified under the provisions of Section
7.08 and eligible under the provisions of Section 7.09, without the execution or
filing of any paper of any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. In case any Debentures shall
have been authenticated, but not made available for delivery, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and make available for
delivery the Debentures so authenticated
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52
with the same effect as if such successor Trustee had itself authenticated such
Debentures.
SECTION 7.13. (a) Subject to the provisions of subsection (b) of
this Section, if the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company within three months prior to a
default, as defined in subsection (b) of this Section, or subsequent to such a
default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Debentures and the holders of other indenture
securities (as defined in subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of
setoff which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in a case for reorganization
pursuant to the Federal Bankruptcy Code or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if
<PAGE>
53
such property was so held prior to the beginning of such three month
period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that the time such property was so received the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Debentureholders and the holders of other indenture
securities in such manner that the Trustee, the Debentureholders and the holders
of other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Company in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or applicable State law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Debentureholders and the holders of other indenture securities
dividends on claims filed against the Company in bankruptcy or receivership or
in a case for reorganization pursuant to the Federal Bankruptcy Code or
applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim, in
bankruptcy or receivership or in a case for reorganization pursuant to the
Federal Bankruptcy Code or
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54
applicable State law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or a case for reorganization is pending shall have jurisdiction (i)
to apportion between the Trustee, the Debentureholders and the holders of other
indenture securities, in accordance with the provisions of this paragraph, the
funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, the Debentureholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
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55
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property other than cash which shall at any time be subject to the
lien, if any, of this Indenture or of discharging tax liens or other prior
liens or encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Debentureholders at the time and in the manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, subscription agent, fiscal agent or depositary, or
other similar capacity;
(4) any indebtedness created as a result of services rendered or
premises rented; or any indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a Company
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptance or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in full
of the principal of (or premium, if any) or interest upon any of the
Debenture or upon the other indenture securities when and as such
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56
principal (or premium, if any) or interest becomes due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (A) under which the Trustee is also
trustee, (B) which contains provisions substantially similar to the
provisions of subsection (a) of this Section, and (C) under which a default
exists at the time of the apportionment of the funds and property held in
said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company shall mean any obligor upon any of the
Debentures.
ARTICLE VIII
Concerning the Debentureholders
-------------------------------
SECTION 8.01. Whenever in this Indenture it is provided that the
holders of a majority or a specified percentage in aggregate principal amount of
the Debentures of a particular series may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that, at the time of taking any such
action, the
<PAGE>
57
holders of such majority or specified percentage of such series have joined
therein may be evidenced by any instrument or any number of instruments of
similar terms executed by the holders of Debentures of such series in person or
by agent or proxy appointed in writing and acceptable to the Trustee.
If the Company shall solicit from the Debentureholders of any series
any request, demand, authorization, direction, notice, consent, waiver or other
action, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such series for the determination
of Debentureholders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Debentureholders of record at the
close of business on the record date shall be deemed to be Debentureholders for
the purposes of determining whether Debentureholders of the requisite proportion
of outstanding Debentures of that series have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other action, and for that purpose the outstanding Debentures of that series
shall be computed as of the record date; provided that no such authorization,
--------
agreement or consent by such Debentureholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
SECTION 8.02. Subject to the provisions of Section 7.01, proof of the
execution of any instrument by a Debentureholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any person of
any of the Debentures shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of Debentures shall be proved by the Debenture
Register for Debentures of such series or by a certificate of the Debenture
Registrar with respect thereto.
(c) The Trustee may require such additional proof of any matter
referred to in this Section as it shall deem necessary.
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58
SECTION 8.03. Prior to the due presentment for registration of
transfer of any Debenture, the Company, the Trustee, any paying agent and any
Debenture Registrar may deem and treat the person in whose name such Debenture
shall be registered upon the books of the Company as the absolute owner of such
Debenture (whether or not such Debenture shall be overdue and notwithstanding
any notice of ownership or writing thereon made by anyone other than the
Debenture Registrar) for the purpose of receiving payment of, or on account of,
the principal of, premium, if any, and (subject to Section 2.03) interest on,
such Debenture and for all other purposes; and neither the Company nor the
Trustee nor any paying agent nor any Debenture Registrar shall be affected by
any notice to the contrary.
SECTION 8.04. In determining whether the holders of the requisite
aggregate principal amount of Debentures of a particular series have concurred
in any direction, consent or waiver under this Indenture, Debentures of that
series which are owned by the Company or any other obligor on the Debentures of
that series or by any Subsidiary of the Company or of such other obligor on the
Debentures of that series shall be disregarded and deemed not to be outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures of such series which a Responsible
Officer of the Trustee actually knows are so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section, if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right so to act with respect to
such Debentures and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 8.05. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or a specified percentage in aggregate principal amount
of the Debentures of a particular series, any holder of a Debenture of that
series which is shown by the evidence to be included in the Debentures the
holders of which have consented to such action may, by filing written notice
with the Trustee, and upon proof of holding as provided in Section 8.02, revoke
such action so far as concerns such Debenture. Except as aforesaid any such
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59
action taken by the holder of any Debenture shall be conclusive and binding upon
such holder and upon all future holders and owners of such Debenture, and of any
Debenture issued in exchange therefor, on registration of transfer thereof or in
place thereof, irrespective of whether or not any notation in regard thereto is
made upon such Debenture. Any action required by the Indenture to be taken, and
that is taken, by the holders of the majority or a specified percentage in
aggregate principal amount of the Debentures of a particular series shall be
conclusively binding upon the Company, the Trustee and the holders of all the
Debentures of that series.
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. In addition to any supplemental indenture otherwise
authorized by this Indenture, the Company, when authorized by a Board
Resolution, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall conform to the
provisions of the Trust Indenture Act as then in effect), without the consent of
the Debentureholders, for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company
contained herein or otherwise established with respect to the Debentures of
all or any series; or
(b) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the holders of
the Debentures of all or any series as the Board of Directors shall
consider to be for the protection of the holders of Debentures of all or
any series, and to make the occurrence, or the occurrence and continuance,
of a default in any of such additional covenants, restrictions, conditions
or provisions an Event of Default with respect to such series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of any
-------- -------
such additional covenant, restriction, condition or provision, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an
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60
immediate enforcement upon such default or may limit the remedies available
to the Trustee upon such default or may limit the right of the holders of a
majority in aggregate principal amount of the Debentures of such series to
waive such default; or
(c) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture as shall not be
inconsistent with the provisions of this Indenture and shall not adversely
affect the interests of the holders of the Debentures of any series; or
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Debenture outstanding, determined in accordance with
Section 8.04, of any series created prior to the execution of such
supplemental indenture which is entitled to the benefit of such provision;
or
(e) to add to this Indenture such provisions as may be expressly
permitted by the Trust Indenture Act, excluding, however, the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act as in effect at
the date as of which this instrument was executed or any corresponding
provision in any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, and to make any further
appropriate agreements and stipulations which may be therein contained, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Debentures at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
SECTION 9.02. With the consent (evidenced as provided in Section
8.01) of the holders of not less than a majority in aggregate principal amount
of the Debentures of each series affected by such supplemental indenture or
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61
indentures at the time outstanding, determined in accordance with Section 8.04,
(and, in the case of any series of Debentures held as trust assets of a Vintage
Petroleum Capital Trust and with respect to which a Security Exchange has not
theretofore occurred, such consent of holders of the Preferred Securities and
the Common Securities of such Vintage Petroleum Capital Trust as may be required
under the Declaration of Trust of such Vintage Petroleum Capital Trust), the
Company, when authorized by a Board Resolution, and the Trustee may from time to
time and at any time enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures of such
series under this Indenture; provided, however, that no such supplemental
-------- -------
indenture shall (i) extend the fixed maturity of any Debentures of any series,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any premium payable upon the redemption
thereof, without the consent of the holder of each Debenture so affected or (ii)
reduce the aforesaid percentage of Debentures, the holders of which are required
to consent to any such supplemental indenture, without the consent of the
holders of each Debenture (and, in the case of any series of Debentures held as
trust assets of a Vintage Petroleum Capital Trust and with respect to which a
Security Exchange has not theretofore occurred, such consent of the holders of
the Preferred Securities and the Common Securities of such Vintage Petroleum
Capital Trust as may be required under the Declaration of Trust of such Vintage
Petroleum Capital Trust) then outstanding and affected thereby.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Debentureholders (and, in
the case of any series of Debentures held as trust assets of Vintage Petroleum
Capital Trust and with respect to which a Security Exchange has not theretofore
occurred, such consent of holders of the Preferred Securities and the Common
Securities of such Vintage Petroleum Capital Trust as may be required under the
Declaration of Trust of such Vintage Petroleum Capital Trust), the Trustee shall
join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may in
its discretion
<PAGE>
62
but shall not be obligated to enter into such supplement indenture.
It shall not be necessary for the consent of the Debentureholders of
any series affected thereby under this Section to approve the particular form of
any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, setting forth in
general terms the substance of such supplemental indenture, to the
Debentureholders of all series affected thereby as their names and addresses
appear upon the Debenture Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
SECTION 9.03. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article or of Section 10.01, this Indenture
shall, with respect to Debentures of the series affected thereby, be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Debentures of the
series affected thereby shall thereafter be determined, exercised and enforced
hereunder subject to in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 9.04. Debentures of any series, affected by a supplemental
indenture, authenticated and delivered after the execution of such supplemental
indenture pursuant to the provisions of this Article or of Section 10.01, may
bear a notation in form approved by the Company, provided such form meets the
requirements of any exchange upon which such series may be listed, as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Debentures of that series so modified as to conform, in the
opinion of the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Company,
authenticated by the Trustee and delivered in exchange for the Debentures of
that series then Outstanding.
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SECTION 9.05. The Trustee, subject to the provisions of Section 7.01,
may receive an Opinion of Counsel and the other documents, if any, required by
Section 13.06, as conclusive evidence that any supplemental indenture executed
pursuant to this Article is authorized or permitted by, and conforms to, the
terms of this Article and that it is proper for the Trustee under the provisions
of this Article to join in the execution thereof.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. The Company shall not consolidate with or merge with
or into any Person, or convey, transfer or lease all or substantially all its
assets, unless: (i) either (a) the Company shall be the continuing Person in the
case of a merger or (b) the resulting, surviving or transferee Person if other
than the Company (the "Successor Company") shall be a corporation organized and
existing under the laws of the United States, any State thereof or the District
of Columbia and the Successor Company shall expressly assume, by an Indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the Debentures
according to their tenor, and this Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default would occur or be
continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental Indenture (if any)
comply with this Indenture.
SECTION 10.02. In case of any consolidation or merger, or conveyance
or transfer of the assets of the Company as an entirety or virtually as an
entirety in accordance with Section 10.01, the Successor Company shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the party of the first part, and the predecessor corporation
shall be relieved of any further obligation under the Indenture and the
Debentures. The Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of the Successor
Company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debentures which previously shall have
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been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debentures which the Successor Company thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all such Debentures had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Debentures appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Unclaimed Moneys
----------------
SECTION 11.01. (A) If at any time (a) the Company shall have paid or
caused to be paid the principal of, and interest on, all the Debentures of any
series outstanding hereunder (other than Debentures of such series which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.07) as and when the same shall have become due and payable, or (b)
the Company shall have delivered to the Trustee for cancellation all Debentures
of any series theretofore authenticated (other than any Debentures of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.07) or (c)) (i) all the Debentures of
any series not theretofore delivered to the Trustee for cancellation shall have
become due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Company in accordance with Section 11.04)
or Government Obligations, maturing as to principal and interest at such times
and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal and interest on all
Debentures of such series on each date that
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65
such principal or interest is due and payable and (B) any mandatory sinking fund
payments on the dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Debentures of such series; and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) rights of registration of transfer and exchange
of Debentures of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Debentures, (iii) rights of holders of Debentures to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration), and remaining rights of the
Debentureholders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, duties and immunities of the Trustee hereunder, (v) the
rights of the holders of Debentures of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them, and (vi) the obligations of the Company under Section 4.02) and the
Trustee, on demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel and at the cost and expense of the Company, shall execute
proper instruments acknowledging such satisfaction of and discharging this
Indenture; provided that the rights of Holders of the Debentures to receive
--------
amounts in respect of principal of, and interest on, the Debentures held by them
shall not be delayed longer than required by then-applicable mandatory rules or
policies of any securities exchange upon which the Debentures are listed. The
Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Debentures of such series.
(B) The following provisions shall apply to the Debentures of each
series unless specifically otherwise provided in a supplemental indenture hereto
pursuant to Section 2.01. In addition to discharge of the Indenture pursuant to
the next preceding paragraph, the Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debentures of a series on the date
of the deposit referred to in subparagraph (a) below, and the provisions of this
Indenture with respect to the Debentures of such series shall no longer be in
effect (except as to (i) rights of registration of transfer and exchange of
Debentures of such series and the Company's right of optional redemption, if
any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Debentures,
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(iii) rights of holders of Debentures to receive payments of principal thereof
and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the holders of Debentures to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, duties
and immunities of the Trustee hereunder, (v) the rights of the holders of
Debentures as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Company under Section 4.02) and the Trustee, at the expense of the Company,
shall at the Company's request, execute proper instruments acknowledging the
same, if
(a) with reference to this provision the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust
funds in trust, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of the Debentures of such series (i) cash in
an amount, or (ii) Governmental Obligations maturing as to principal and
interest at such times and in such amounts as will insure the availability
of cash or (iii) a combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (A) the
principal and interest on all Debentures of such series on each date that
such principal or interest is due and payable and (B) any mandatory sinking
fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Debentures of such
series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the
Company is a party or by which it is bound;
(c) the Company has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax law,
in either case to the effect that, and such opinion shall confirm that, the
holders of the Debentures of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount and in the same manner and at the same
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times, as would have been the case if such deposit, defeasance and
discharge had not occurred;
(d) the Company has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for relating to the defeasance contemplated by this provision have
been complied with; and
(e) no event or condition shall exist that, pursuant to the provisions
of Section 14.02 or 14.03, would prevent the Company from making payments
of the principal of or interest on the Debentures of such series on the
date of such deposit.
SECTION 11.02. Subject to Section 11.04, all moneys deposited with
the Trustee (or other trustee) pursuant to Section 11.01 shall be held in trust
and applied by it to the payment, either directly or through any paying agent
(including the Company acting as its own paying agent), to the holders of the
particular Debentures of such series for the payment or redemption of which such
moneys have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest; but such money need not be segregated from
other funds except to the extent required by law.
SECTION 11.03. In connection with the satisfaction and discharge of
this Indenture with respect to Debentures of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such
series of Debentures shall, upon demand of the Company be repaid to it or paid
to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 11.04. Any moneys deposited with, or paid to, the Trustee or
any paying agent for the payment of principal of, or interest on, any Debenture
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest shall have become due and payable,
shall, upon the written request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Company by the Trustee for such series or such paying
agent, and the holder of any Debentures of such series shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Company for any payment which such
holder may be entitled to collect, and all liability of the Trustee or any
paying
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agent with respect to such moneys shall thereupon cease; provided, however, that
-------- -------
the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment, shall, at
the expense of the Company, mail by first-class mail to holders of such
Debentures at their addresses as they shall appear on the Debenture Register,
notice that such moneys remain and that, after a date specified therein, which
shall not be less than 30 days from the date of such mailing, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 11.05. The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on, or assessed against, the
Governmental Obligations deposited pursuant to Section 11.01 or the principal or
interest received in respect of such obligations.
ARTICLE XII
Immunity of Incorporators, Stockholders,
----------------------------------------
Officers and Directors
----------------------
SECTION 12.01. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Debenture, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any predecessor or successor corporation, either directly or
through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations,
and that no such personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Debentures or implied therefrom; and that any and all such
personal liability of every name and nature, either at common law or in equity
or by constitution or statute, and any and all such rights and claims against
every such incorporator, stockholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
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69
obligations, covenants or agreements contained in this Indenture or in any of
the Debentures or implied therefrom, are hereby expressly waived and released as
a condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Debentures.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. All the covenants, stipulations, promises and
agreements in this Indenture made by, or on behalf of, the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 13.02. Any act or proceeding required by any provision of
this Indenture to be authorized or performed by any board, committee or officer
of the Company shall and may be done and performed with like force and effect by
the corresponding board, committee or officer of any corporation that shall at
the time be the lawful sole successor of the Company.
SECTION 13.03. The Company, by instrument in writing executed by
authority of two-thirds of its Board of Directors and delivered to the Trustee,
may surrender any of the powers reserved to the Company and thereupon such power
so surrendered shall terminate both as to the Company and as to any successor
corporation.
SECTION 13.04. Except as otherwise expressly provided herein, any
notice or demand which by any provision of this Indenture is required or
permitted to be given or served by the Trustee or by the holders of Debentures
to or on the Company may be given or served by being deposited first class
postage prepaid in a post-office letterbox addressed (until another address is
filed in writing by the Company with the Trustee), as follows: Vintage
Petroleum, Inc., 4200 One Williams Center, Tulsa, Oklahoma 74172, Attention:
Chief Financial Officer. Any notice, election, request or demand by the Company
or any Debentureholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made in writing at the
Corporate Trust Office of the Trustee.
SECTION 13.05. This Indenture and each Debenture shall be deemed to
be a contract made under the laws of the State of New York, and for all purposes
shall be construed
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in accordance with the laws of said State (without regard to principles of
conflicts of laws thereof).
SECTION 13.06. (a) Upon any application or demand by the Company to
the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent have been complied with,
except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
in this Indenture (other than the Certificate provided pursuant to Section
5.03(d)) shall include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based; (3) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with; and (4) a
statement as to whether or not, in the opinion of such person, such condition or
covenant has been complied with.
SECTION 13.07. Except as provided pursuant to Section 2.01 in one or
more indentures supplemental to this Indenture, in any case where the date of
maturity of interest or principal of any Debenture or the date of redemption of
any Debenture shall not be a Business Day then payment of interest or principal
(and premium, if any) may be made on the next succeeding day which is a Business
Day with the same force and effect as if made on the nominal date of maturity or
redemption, and no interest shall accrue for the period after such nominal date.
SECTION 13.08. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
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71
SECTION 13.09. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 13.10. In case any one or more of the provisions contained in
this Indenture or in the Debentures of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Indenture or of such Debentures, but this Indenture and such Debentures shall be
construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 13.11. The Company will have the right at all times to assign
any of its rights or obligations under this Indenture to a direct or indirect
wholly owned Subsidiary of the Company; provided that, in the event of any such
assignment, the Company will remain jointly and severally liable for all such
obligations. Subject to the foregoing, this Indenture is binding upon and
inures to the benefit of the parties thereto and their respective successors and
assigns. This Indenture may not otherwise be assigned by the parties hereto.
SECTION 13.12. The Company hereby acknowledges that, to the extent
specifically set forth herein, prior to a Security Exchange with respect to the
Debentures of any series held as trust assets of a Vintage Petroleum Capital
Trust, the holders of the Preferred Securities of such Vintage Petroleum Capital
Trust shall expressly be third party beneficiaries of this Indenture. The
Company further acknowledges that, prior to a Security Exchange with respect to
Debentures of any series held as trust assets of a Vintage Petroleum Capital
Trust, if the Property Trustee of such Vintage Petroleum Capital Trust fails to
enforce its rights under this Indenture as the holder of the Debentures of a
series held as trust assets of such Vintage Petroleum Capital Trust, any holder
of the Preferred Securities of such Vintage Petroleum Capital Trust may
institute legal proceedings directly against the Company to enforce such
Property Trustee's rights under this Indenture without first instituting any
legal proceedings against such Property Trustee or any other Person.
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72
ARTICLE XIV
Subordination of Debentures
---------------------------
SECTION 14.01. The Company, for itself, its successors and assigns,
covenants and agrees, and each holder of a Debenture, by its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (premium, if
any), and interest on, each and all of the Debentures is hereby expressly
subordinated, to the extent and in the manner hereinafter in this Article set
forth, in right of payment to the prior payment in full of all Senior
Indebtedness. The provisions of this Article are made for the benefit of all
holders of Senior Indebtedness, and any such holder may proceed to enforce such
provisions.
SECTION 14.02. No payment by the Company on account of principal of
(premium, if any), or interest on, the Debentures of any series shall be made if
any default or event of default with respect to any Senior Indebtedness, which
permits or with the giving of notice or passage of time or both would permit the
holders thereof (or a trustee on their behalf) to accelerate the maturity
thereof, shall have occurred and be continuing and the Company and the Trustee
shall have received written notice thereof from the holders of at least 10% in
principal amount of any kind or category of any Senior Indebtedness (or the
representative or trustee of such holders) or the Trustee shall have received
written notice thereof from the Company.
In the event that any Debentures of any series are declared due and
payable before the date specified therein as the fixed dated on which the
principal thereof is due and payable pursuant to Article VI, or upon any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding up or
total or partial liquidation or reorganization of the Company, whether voluntary
or involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all principal of (premium, if any) and interest due or to become due upon all
Senior Indebtedness shall first be paid in full before any holders of
Debentures, or the Trustee, shall be entitled to receive or retain any assets
(other than shares of stock of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is subordinated, at least
to the same extent as the Debentures, to the payment of all Senior Indebtedness
which may at the time be outstanding, provided that the rights of the holders of
the Senior Indebtedness are not altered by such
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73
reorganization or readjustment) so paid or distributed in respect of the
Debentures (for principal or interest); and upon such dissolution or winding up
or liquidation or reorganization, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities (other
than shares of stock of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated at least to the same
extent as the Debentures, to the payment of all Senior Indebtedness which may at
the time be outstanding, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment), to which
any holder of Debentures or the Trustee would be entitled, except for the
provisions of this Section, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, or by any holder of Debentures or the Trustee if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or their representatives or trustees, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the holders of
Debentures or to the Trustee.
No holder of Senior Indebtedness shall be prejudiced in his right to
enforce subordination of the Debentures of any series by any act or failure to
act on the part of the Company.
Without notice to or the consent of any holder of Debentures or the
Trustee the holders of Senior Indebtedness may at any time and from time to
time, without impairing or releasing the subordination herein made, change the
manner, place or terms of payment, or change or extend the time of payment of or
renew or alter the Senior Indebtedness, or amend or supplement in any manner any
instrument evidencing the Senior Indebtedness, any agreement pursuant to which
the Senior Indebtedness was issued or incurred or any instrument securing or
relating to the Senior Indebtedness; release any person liable in any manner for
the payment or collection of the Senior Indebtedness; exercise or refrain from
exercising any rights in respect of the Senior Indebtedness against the Company
or any other person; apply any moneys or other property paid by any person or
released in any manner to the Senior Indebtedness; or accept or release any
security for the Senior Indebtedness.
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74
Subject to the payment in full of all Senior Indebtedness, the holders
of Debentures shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company that, by its express terms, ranks on a parity with
the Debentures and is entitled to like rights or subrogation) to the rights of
the holders of Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until the Debentures
shall be paid in full. For purposes of such subrogation, no payments or
distributions on the Senior Indebtedness pursuant to this Section shall, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Debentures, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness, and no payments or
distributions to the Trustee or the holders of the Debentures of assets by
virtue of the subrogation herein provided for shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Debentures, be deemed to be a payment to or on account of the Debentures. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the holders of the Debentures, on the one hand,
and the holders of Senior Indebtedness, on the other hand, and nothing contained
in this Article or elsewhere in this Indenture or in the Debentures of any
series is intended to or shall impair the obligation of the Company, which is
unconditional and absolute, to pay the principal of and interest on the
Debentures of any series when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the holders of
the Debentures and creditors of the Company other than the holders of Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or the
holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article, of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company otherwise payable or delivered to the
Trustee or any holder of Debentures upon the exercise of any such remedy.
Upon any payment or distribution pursuant to this Section, the Trustee
and any holder of Debentures shall be entitled to rely upon any order or decree
of a court of competent jurisdiction in which any proceedings of the nature
referred to in this Section are pending, and the Trustee, subject to the
provisions of Section 7.01, and any holder of Debentures shall be entitled to
rely upon a certificate of the liquidating trustee or agent or other person
making such payment or distribution delivered to the Trustee or to any holder of
Debentures, for the purpose of
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75
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Section.
In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Section, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such person under this Section, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
Nothing contained in this Article or elsewhere in this Indenture, or
in any of the Debentures of any series, shall prevent (a) the application by the
Trustee or any paying agent of any moneys deposited with it hereunder to the
payment of or on account of the principal of or interest on Debentures of any
series if, at the time of such deposit (provided that the time of such deposit
was not more than 10 days prior to the time of such payment), such payment would
not have been prohibited by the foregoing provisions of this Section or (b) any
payment by the Company or the Trustee to any holder of Debentures of moneys in
connection with a redemption of Debentures of any series if (i) notice of such
redemption has been given to the holders of the Debentures to be redeemed
pursuant to Article III prior to the receipt by the Trustee of the written
notice referred to in Section 14.04 and (ii) such notice of redemption is given
not earlier than 60 days before the date fixed for redemption.
SECTION 14.03. The holder of each Debenture by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to acknowledge and effectuate the subordination between
the holders of Debentures and the holders of Senior Indebtedness as provided in
this Article and appoints the Trustee as attorney-in-fact for any and all such
purposes.
SECTION 14.04. Notwithstanding the provisions of this Article or any
other provision of this Indenture, but subject to the provisions of Section
7.01, the Trustee and any paying agent shall not be charged with knowledge of
the
<PAGE>
76
existence of any Senior Indebtedness, or any default in the payment of the
principal of (premium, if any), or interest on, any Senior Indebtedness, or of
any facts which would prohibit the making of any payment of moneys to or by the
Trustee or any such paying agent, unless and until the Trustee or such paying
agent shall have received written notice thereof from the Company or the holders
of at least 10% in principal amount of any kind or category of any Senior
Indebtedness or the representative or trustee of such holders; nor shall the
Trustee or any such paying agent be charged with knowledge of the curing of any
such default or of the elimination of the act or condition preventing any such
payment unless and until the Trustee or such paying agent shall have received an
Officers' Certificate to such effect.
SECTION 14.05. The Trustee shall be entitled to all the rights set
forth in this Article with respect to any Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of Senior
Indebtedness; and nothing in Section 7.13, or elsewhere in this Indenture, shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article shall apply to claims of, or payments to, the Trustee under or pursuant
to Section 7.06.
SECTION 14.06. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to any holder of
Debentures or the Company or any other person moneys or assets to which any
holders of Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
SECTION 14.07. In case at any time any paying agent other than the
Trustee shall have been appointed by the Company and be acting hereunder, the
term "Trustee" as used in this Article 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 for all intents and purposes as if such paying
agent were named in this Article in addition to or in place of the Trustee;
provided, however, that Sections 14.04, 14.05 and 14.06 shall not apply to the
- -------- -------
Company if it acts as paying agent.
[ ], as Trustee, hereby accepts the trust in this
Indenture declared and provided, upon the terms and conditions hereinabove set
forth.
<PAGE>
77
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
VINTAGE PETROLEUM, INC.
by
-------------------------
Name:
Title:
- ----------------------
Name:
Title:
[ ],
as Trustee,
by
-------------------------
Name:
Title:
- ----------------------
Name:
Title:
<PAGE>
EXHIBIT 4.3
DECLARATION OF TRUST OF
VINTAGE PETROLEUM CAPITAL TRUST I
THIS DECLARATION OF TRUST, dated effective as of October 15, 1997, is
by and among Vintage Petroleum, Inc., a Delaware corporation (the "Sponsor"),
Chase Manhattan Bank Delaware, a Delaware banking corporation, not in its
individual capacity but solely as trustee (the "Delaware Trustee"), and the
individual trustees identified on the signature page hereto (the "Regular
Trustees"), each not in his or her individual capacity but solely as trustee
(the Delaware Trustee and such Regular Trustees, collectively, the "Trustees").
The Sponsor and the Trustees hereby agree as follows:
1. The trust created hereby shall be known as "Vintage Petroleum
Capital Trust I," in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereby that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. Code (S) 3801 et seq. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust in the office of the Secretary of State of the State of Delaware in
accordance with the Business Trust Act. The Trust is hereby established by the
Sponsor and the Trustees for the purpose of (i) issuing trust preferred
securities ("Preferred Securities") representing preferred undivided beneficial
interests in the assets of the Trust in exchange for cash and investing the
proceeds thereof in debentures of the Sponsor, (ii) issuing and selling common
securities ("Common Securities" and, together with the Preferred Securities,
"Trust Securities") representing undivided beneficial interests in the assets of
the Trust to the Sponsor in exchange for cash and investing the proceeds thereof
in additional debentures of the Sponsor and (iii) engaging in such other
activities as are necessary, convenient or incidental thereto.
3. Concurrent with the first issuance of any Trust Securities by the
Trust, the Sponsor and the Trustees intend to enter into an amended and restated
Declaration of Trust, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and the Common Securities referred to therein. Prior to
the execution and delivery of such amended and restated Declaration of Trust,
the Trustees shall not have any duty or obligation hereunder or with respect to
the trust estate.
4. The Sponsor and the Trustees hereby authorize and direct the
Sponsor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of, among other things, the
Preferred Securities of the Trust and the related guarantees of such Preferred
Securities by the Sponsor and (b) a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement") (including all pre-
effective and post-effective
<PAGE>
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange (the "Exchange") and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the Exchange;
(iii) to file and execute on behalf of the Trust such applications, reports,
surety bonds, irrevocable consents, appointments of attorney for service of
process and other papers and documents as shall be necessary or desirable to
register the Preferred Securities under the securities or blue sky laws of such
jurisdictions as the Sponsor, on behalf of the Trust, may deem necessary or
desirable and (iv) to negotiate and execute on behalf of the Trust that certain
Underwriting Agreement relating to the Preferred Securities, among the Trust,
the Sponsor and the several Underwriters named therein, substantially in the
form to be included as an Exhibit to the 1933 Act Registration Statement or
incorporated by reference therein. In the event that any filing referred to in
clauses (i) through (iii) above is required by the rules and regulations of the
Commission, the Exchange or any other national stock exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, the Regular Trustees, in their capacity as Trustees of the Trust, are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Delaware Trustee, in its capacity as Trustee of the Trust, shall not be required
to join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the Exchange or
any other national stock exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Sponsor and each Trustee, solely in
his, her or its capacity as Trustee of the Trust, hereby constitute and appoint
the Regular Trustees, and each of them, as his, her or its, as the case may be,
true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution, for the Sponsor or such Trustee and in the Sponsor's and
such Trustee's name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to the 1933 Act
Registration Statement and the 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as the Sponsor or such Trustee might or could do in person, thereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Sponsor which may increase or decrease the
number of Trustees; provided, however, that the number of Trustees shall in no
event be less than four (4); and provided, further, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
meets any other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days' prior notice to the
Sponsor.
2
<PAGE>
7. The recitals contained in this Declaration of Trust shall be
taken as statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration of Trust.
8. (a) The Delaware Trustee (the "Fiduciary Indemnified Person")
shall not be liable, responsible or accountable in damages or otherwise to the
Trust, the Sponsor, the Trustees or any holder of the Trust Securities for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by the Fiduciary Indemnified Person in good faith on behalf of the Trust
and in a manner the Fiduciary Indemnified Person reasonably believed to be
within the scope of authority conferred on the Fiduciary Indemnified Person by
this Declaration of Trust or by law, except that the Fiduciary Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
the Fiduciary Indemnified Person's gross negligence or bad faith with respect to
such acts or omissions.
(b) The Fiduciary Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any person as to
matters the Fiduciary Indemnified Person reasonably believes are within such
other person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits or losses of the Trust, or any other facts pertinent to the existence
and amount of assets from which distributions to holders of Trust Securities
might properly be paid.
9. The Sponsor agrees, to the fullest extent permitted by applicable
law,
(a) to indemnify and hold harmless the Fiduciary Indemnified Person,
or any of its officers, directors, shareholders, employees, representatives or
agents, from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by the Fiduciary Indemnified
Person by reason of the creation, operation or termination of the Trust in a
manner the Fiduciary Indemnified Person reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Person by this
Declaration of Trust, except that the Fiduciary Indemnified Person shall not be
entitled to be indemnified in respect of any loss, damage or claim incurred by
the Fiduciary Indemnified Person by reason of gross negligence or willful
misconduct with respect to such acts or omissions; and
(b) to advance expenses (including legal fees) incurred by the
Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding, from time to time, prior to the final disposition of such claim,
demand, action, suit or proceeding, upon receipt by the Trust of any undertaking
by or on behalf of the Fiduciary Indemnified Person to repay such amount if it
shall be determined that the Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
10. The provisions of Section 9 shall survive the termination of this
Declaration of Trust or the earlier resignation or removal of the Fiduciary
Indemnified Person as the Delaware Trustee.
3
<PAGE>
11. The Trust may terminate without issuing any Trust Securities at
the election of the Sponsor.
12. This Declaration of Trust and the rights of the parties hereunder
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, and all rights and remedies hereunder shall be governed by such laws
without regard to the principles of conflict of laws.
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed effective as of the day and year first above written.
VINTAGE PETROLEUM, INC.,
as Sponsor
By: /s/ William C. Barnes
----------------------
Name: William C. Barnes
Title: Executive Vice President
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely as
Delaware Trustee
By: /s/ Denis Kelly
----------------
Name: Denis Kelly
Title: Trust Officer
/s/ S. Craig George
-------------------
S. Craig George, not in his individual
capacity but solely as Regular Trustee
/s/ William C. Barnes
---------------------
William C. Barnes, not in his individual
capacity but solely as Regular Trustee
/s/ Michael F. Meimerstorf
--------------------------
Michael F. Meimerstorf, not in his
individual capacity but solely as Regular
Trustee
4
<PAGE>
EXHIBIT 4.4
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
Vintage Petroleum Capital Trust I
_________________
Dated as of [ ]
================================================================================
<PAGE>
TABLE OF CONTENTS*
Page
----
<TABLE>
<S> <C>
PARTIES.............................................. ...................... 1
RECITALS.................................................................... 1
</TABLE>
ARTICLE I
Definitions
-----------
<TABLE>
<S> <C> <C>
SECTION 1.01 Certain terms defined; other terms
defined in the Trust Indenture Act of
1939, as amended, or by reference
therein in the Securities Act of
1933, as amended, to have the
meanings assigned therein................................ 2
Affiliate................................................... 2
Book Entry Interest......................................... 2
Business Day................................................ 3
Business Trust Act.......................................... 3
Certificate................................................. 3
Certificate of Trust........................................ 3
Clearing Agency............................................. 3
Clearing Agency Participant................................. 3
Closing Date................................................ 3
Code........................................................ 3
Commission.................................................. 3
Common Securities........................................... 3
Common Security Certificate................................. 3
Covered Person.............................................. 4
Debenture Trustee........................................... 4
Debentures.................................................. 4
Definitive Preferred Security
Certificates............................................. 4
Agreement................................................... 4
Distribution................................................ 4
DTC......................................................... 4
Event of Default............................................ 4
</TABLE>
- ------------
* This Table of Contents does not constitute part of the Amended and
Restated Declaration of Trust and should not have any bearing upon the
interpretation of any of its terms or provisions.
<PAGE>
Contents p. 2
Page
----
<TABLE>
<S> <C>
Exchange Act................................................ 4
Fiscal Year................................................. 4
Global Certificate.......................................... 4
Holder...................................................... 4
Indemnified Person.......................................... 5
Indenture................................................... 5
Indenture Event of Default.................................. 5
Investment Company.......................................... 5
Investment Company Act...................................... 5
Legal Action................................................ 5
Liquidation Distribution.................................... 5
Majority in liquidation amount of the
Securities............................................... 5
Ministerial Action.......................................... 5
Option Closing Date......................................... 5
Original Declaration........................................ 5
Paying Agent................................................ 6
Person...................................................... 6
Preferred Guarantee......................................... 6
Preferred Securities........................................ 6
Preferred Security Beneficial Owner......................... 6
Preferred Security Certificate.............................. 6
Property Trustee............................................ 6
Property Account............................................ 6
Quorum...................................................... 6
Regular Trustee............................................. 6
Related Party............................................... 6
Resignation Request......................................... 6
Responsible Officer......................................... 7
Rule 3a-7................................................... 7
Securities.................................................. 7
Securities Act.............................................. 7
66-2/3% in liquidation amount of the
Securities............................................... 7
Special Event............................................... 7
Sponsor..................................................... 7
Successor Delaware Trustee.................................. 7
Successor Property Trustee.................................. 7
10% in liquidation amount of the
Securities............................................... 7
Treasury Regulations........................................ 8
Trustee or Trustees......................................... 8
Trust Indenture Act......................................... 8
Underwriting Agreement...................................... 8
</TABLE>
<PAGE>
Contents p. 3
Page
----
ARTICLE II
Trust Indenture Act
-------------------
<TABLE>
<S> <C>
SECTION 2.01 Trust Indenture Act; Application............................ 8
SECTION 2.02 List of Holders of Preferred
Securities............................................... 9
SECTION 2.03 Reports by the Property Trustee............................. 9
SECTION 2.04 Periodic Reports to Property Trustee........................ 9
SECTION 2.05 Evidence of Compliance with Conditions...................... 9
Precedent
SECTION 2.06 Events of Default; Waiver................................... 9
SECTION 2.07 Disclosure of Information................................... 12
</TABLE>
ARTICLE III
Organization
------------
<TABLE>
<S> <C>
SECTION 3.01 Name........................................................ 12
SECTION 3.02 Office...................................................... 12
SECTION 3.03 Issuance of the Trust Securities............................ 12
SECTION 3.04 Purchase of Debentures...................................... 13
SECTION 3.05 Purpose..................................................... 13
SECTION 3.06 Authority................................................... 14
SECTION 3.07 Title to Property of the Trust.............................. 14
SECTION 3.08 Powers and Duties of the Regular
Trustees................................................. 14
SECTION 3.09 Prohibition of Actions by Trust and
Trustees................................................. 17
SECTION 3.10 Powers and Duties of the Property
Trustee.................................................. 18
SECTION 3.11 Delaware Trustee............................................ 21
SECTION 3.12 Certain Rights and Duties of the
Property Trustee......................................... 21
SECTION 3.13 Registration Statement and Related
Matters.................................................. 24
SECTION 3.14 Filing of Amendments to Certificate of
Trust.................................................... 26
SECTION 3.15 Execution of Documents by Regular
Trustees................................................. 26
SECTION 3.16 Trustees Not Responsible for Recitals or
Issuance of Securities................................... 26
SECTION 3.17 Duration of Trust........................................... 26
</TABLE>
<PAGE>
Contents p. 4
Page
----
ARTICLE IV
Sponsor
-------
<TABLE>
<S> <C>
SECTION 4.01 Purchase of Common Securities by
Sponsor................................................. 26
SECTION 4.02 Expenses................................................... 27
</TABLE>
ARTICLE V
Trustees
--------
<TABLE>
<S> <C>
SECTION 5.01 Number of Trustees; Qualifications......................... 27
SECTION 5.02 Appointment, Removal and Resignation of
Trustees................................................ 30
SECTION 5.03 Vacancies Among Trustees................................... 31
SECTION 5.04 Effect of Vacancies........................................ 31
SECTION 5.05 Meetings................................................... 32
SECTION 5.06 Delegation of Power........................................ 32
</TABLE>
ARTICLE VI
Distributions
-------------
<TABLE>
<S> <C>
SECTION 6.01 Distributions.............................................. 33
</TABLE>
ARTICLE VII
Issuance of Securities
----------------------
<TABLE>
<S> <C>
SECTION 7.01 General Provisions Regarding
Securities.............................................. 33
</TABLE>
ARTICLE VIII
Dissolution and Termination of Trust
------------------------------------
<TABLE>
<S> <C>
SECTION 8.01 Dissolution and Termination of Trust....................... 35
</TABLE>
<PAGE>
Contents p. 5
Page
----
ARTICLE IX
Transfer of Interests
---------------------
<TABLE>
<S> <C> <C>
SECTION 9.01 Transfer of Securities...................................... 35
SECTION 9.02 Transfer of Certificates.................................... 36
SECTION 9.03 Deemed Security Holders..................................... 37
SECTION 9.04 Book Entry Interests........................................ 37
SECTION 9.05 Notices to Holders of Certificates.......................... 38
SECTION 9.06 Appointment of Successor Clearing
Agency................................................... 38
SECTION 9.07 Definitive Preferred Securities
Certificates............................................. 38
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen
Certificates............................................. 39
</TABLE>
ARTICLE X
Limitation of Liability, Indemnification
----------------------------------------
<TABLE>
<S> <C>
SECTION 10.01 Exculpation................................................ 39
SECTION 10.02 Indemnification and Compensation........................... 40
SECTION 10.03 Outside Businesses......................................... 41
</TABLE>
ARTICLE XI
Accounting
----------
<TABLE>
<S> <C>
SECTION 11.01 Fiscal Year................................................ 41
SECTION 11.02 Certain Accounting Matters................................. 41
SECTION 11.03 Banking.................................................... 42
SECTION 11.04 Withholding................................................ 42
</TABLE>
ARTICLE XII
Amendments and Meetings
-----------------------
<TABLE>
<S> <C>
SECTION 12.01 Amendments................................................. 43
SECTION 12.02 Meetings of the Holders of Securities;
Action by Written Consent............................... 44
</TABLE>
<PAGE>
Contents p. 6
Page
----
ARTICLE XIII
Representations of Property Trustee
-----------------------------------
and Delaware Trustee
--------------------
<TABLE>
<S> <C>
SECTION 13.01 Representations and Warranties of
Property Trustee........................................ 46
</TABLE>
ARTICLE XIV
Miscellaneous
-------------
<TABLE>
<S> <C>
SECTION 14.01 Notices.................................................... 47
SECTION 14.02 Undertaking for Costs...................................... 48
SECTION 14.03 Governing Law.............................................. 49
SECTION 14.04 Headings................................................... 49
SECTION 14.05 Partial Enforceability..................................... 49
SECTION 14.06 Counterparts............................................... 50
SECTION 14.07 Intention of the Parties................................... 50
SECTION 14.08 Successors and Assigns..................................... 50
SIGNATURES AND SEALS........................................................ 51
EXHIBIT A CERTIFICATE OF TRUST
EXHIBIT B TERMS OF THE PREFERRED SECURITIES
EXHIBIT C TERMS OF THE COMMON SECURITIES
</TABLE>
<PAGE>
1
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
Vintage Petroleum Capital Trust I
[ ]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"),
dated and effective as of [ ], by the undersigned
trustees (together with all other Persons from time to time duly
appointed and serving as trustees in accordance with the
provisions of this Declaration, the "Trustees"), Vintage
Petroleum, Inc., a Delaware corporation, as trust sponsor (the
"Sponsor"), and the holders, from time to time, of undivided
beneficial interests in the assets of the Vintage Petroleum
Capital Trust I to be issued pursuant to this Declaration.
WHEREAS the Sponsor and the original trustees entered into a
Declaration of Trust dated as of October 15, 1997 (the "Original Declaration")
in order to establish Vintage Petroleum Capital Trust I, a business trust (the
"Trust") under the Business Trust Act (as defined herein);
WHEREAS the Certificate of Trust (the "Certificate of Trust") of the
Trust was filed with the office of the Secretary of State of the State of
Delaware on October 15, 1997;
WHEREAS the Trustees and the Sponsor desire to continue the Trust
pursuant to the Business Trust Act for the purpose of, as described more fully
in Sections 3.03, 3.04 and 3.05 hereof, (i) issuing and selling Preferred
Securities (as defined herein) representing preferred undivided beneficial
interests in the assets of the Trust for cash and investing the proceeds thereof
in Debentures (as defined herein) of the Sponsor issued under the Indenture (as
defined herein) to be held as assets of the Trust, (ii) issuing and selling
Common Securities (as defined herein) representing common undivided beneficial
interests in the assets of the Trust to the Sponsor for cash
<PAGE>
2
and investing the proceeds thereof in additional Debentures issued under the
Indenture to be held as assets of the Trust and (iii) engaging in such other
activities as are necessary, convenient or incidental thereto;
NOW, THEREFORE, it being the intention of the parties hereto that the
Trust constitute a business trust under the Business Trust Act, that the
Original Declaration be amended and restated in its entirety as provided herein
and that this Declaration constitute the governing instrument of such business
trust, the Trustees declare that all assets referred to in clauses (i) and (ii)
of the previous Whereas clause purchased by the Trust will be held in trust for
the benefit of the Holders (as defined herein) from time to time of the
Certificates (as defined herein) representing undivided beneficial interests in
the assets of the Trust issued hereunder, subject to the provisions of this
Declaration.
ARTICLE I
Definitions
-----------
SECTION 1.01. Definitions. (a) Capitalized terms used in this
------------
Declaration but not defined in the preamble above have the respective meanings
assigned to them in this Section 1.01; (b) a term defined anywhere in this
Declaration has the same meaning throughout; (c) all references to "the
Declaration" or "this Declaration" are to this Amended and Restated Declaration
of Trust (including Exhibits A, B and C hereto (the "Exhibits")) as modified,
supplemented or amended from time to time; (d) all references in this
Declaration to Articles and Sections and Exhibits are to Articles and Sections
of and Exhibits to this Declaration unless otherwise specified; (e) a term
defined in the Trust Indenture Act has the same meaning when used in this
Declaration unless otherwise defined in this Declaration or unless the context
otherwise requires; and (f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
---------
under the Securities Act or any successor rule thereunder.
"Book Entry Interest" means a beneficial interest in a Global
-------------------
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.04.
<PAGE>
3
"Business Day" means any day other than a Saturday, Sunday or any
------------
other day on which banking institutions in New York, New York are authorized or
required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
------------------
Code, 12 Del. Code (S) 3801 et seq., as it may be amended from time to time.
-- ----
"Certificate" means a Common Security Certificate or a Preferred
-----------
Security Certificate.
"Certificate of Trust" has the meaning set forth in the second Whereas
--------------------
clause above.
"Clearing Agency" means an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Preferred Securities and in whose name, or in the name of a nominee of
that organization, shall be registered a Global Certificate and which shall
undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the Closing Date as specified in the Underwriting
------------
Agreement, which date is also the date of execution and delivery of this
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended from time
----
to time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any Federal tax statute enacted after the date of this Declaration,
as such specific section or corresponding provision is in effect on the date of
application of the provisions of this Declaration containing such reference.
"Commission" means the Securities and Exchange Commission.
----------
"Common Securities" has the meaning specified in Section 7.01(b).
-----------------
"Common Security Certificate" means a definitive certificate in fully
---------------------------
registered form representing a Common Security substantially in the form of
Annex I to Exhibit C.
<PAGE>
4
"Covered Person" means (i) any officer, director, shareholder,
--------------
partner, member, representative, employee or agent of the Trust or its
Affiliates, (ii) any officer, director, shareholder, employee, representative or
agent of The Sponsor or any of its Affiliates and (iii) the Holders from time to
time of the Securities.
"Debenture Trustee" means The Bank of New York, as trustee under the
-----------------
Indenture, until a successor, if any, is appointed thereunder and thereafter
means such successor trustee.
"Debentures" means the series of Junior Subordinated Debentures issued
----------
by The Sponsor under the Indenture to the Property Trustee and entitled the
"[ ] Junior Subordinated Debentures due [ ]".
"Definitive Preferred Security Certificates" has the meaning set forth
------------------------------------------
in Section 9.04.
"Delaware Trustee" has the meaning set forth in Section 5.01(a)(3).
----------------
"Depositary Agreement" means the agreement among the Trust, the
--------------------
Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of Securities
------------
in accordance with Section 6.01.
"DTC" means The Depository Trust Company, the initial Clearing Agency.
---
"Event of Default" in respect of the Securities means an Indenture
----------------
Event of Default has occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
------------
from time to time, or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.01.
-----------
"Global Certificate" has the meaning set forth in Section 9.04.
------------------
"Holder" means a Person in whose name a Certificate representing a
------
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
<PAGE>
5
"Indemnified Person" means any Trustee, any Affiliate of any Trustee,
------------------
any officer, director, shareholder, member, partner, employee, representative or
agent of any Trustee, or any employee or agent of the Trust or any of its
Affiliates.
"Indenture" means the Indenture dated as of [ ], between the
---------
Sponsor and the Debenture Trustee, as amended or supplemented from time to time.
"Indenture Event of Default" means an event or condition defined as an
--------------------------
"Event of Default" with respect to the Debentures under Section 6.01(a) of the
Indenture has occurred and is continuing.
"Investment Company" means an investment company as defined in the
------------------
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
----------------------
amended from time to time, or any successor legislation.
"Legal Action" has the meaning specified in Section 3.08(g).
------------
"Liquidation Distribution" has the meaning set forth in the terms of
------------------------
the Securities as set forth in Exhibits B and C hereto.
"Majority in liquidation amount of the Securities" means, except as
------------------------------------------------
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents more than 50% of the liquidation amount of all outstanding Securities
of such class.
"Ministerial Action" has the meaning set forth in Section 4(c) of the
------------------
terms of the Securities as set forth in Exhibits B and C hereto.
["Option Closing Date" means the Option Closing Date as specified in
-------------------
the Underwriting Agreement.]
"Original Declaration" has the meaning set forth in the first Whereas
--------------------
clause above.
<PAGE>
6
"Paying Agent" has the meaning specified in Section 3.10(i).
------------
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Guarantee" means the Guarantee Agreement dated as of
-------------------
[ ], of the Sponsor in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.01(b).
--------------------
"Preferred Security Beneficial Owner" means, with respect to a Book
-----------------------------------
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of a
Person maintaining an account with such Clearing Agency (directly as a Clearing
Agency Participant or as an indirect participant, in each case in accordance
with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate in
------------------------------
fully registered form representing a Preferred Security substantially in the
form of Annex I to Exhibit B.
"Property Trustee" means the Trustee meeting the eligibility
----------------
requirements set forth in Section 5.01(c) and having the duties set forth for
the Property Trustee herein.
"Property Account" has the meaning specified in Section 3.10(c)(i).
----------------
"Quorum" means a majority of the Regular Trustees or, if there are
------
only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property Trustee or
---------------
the Delaware Trustee.
"Related Party" means any direct or indirect wholly owned subsidiary
-------------
of The Sponsor or any Person which owns, directly or indirectly, 100% of the
outstanding voting securities of The Sponsor.
"Resignation Request" has the meaning specified in Section 5.02(d).
-------------------
<PAGE>
7
"Responsible Officer" means, with respect to the Property Trustee, any
-------------------
officer of the Property Trustee with responsibility for the administration of
this Declaration and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of, and familiarity with, the particular subject.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or any
---------
successor rule thereunder.
"Securities" means the Common Securities and the Preferred Securities.
----------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time, or any successor legislation.
"66-2/3% in liquidation amount of the Securities" means, except as
-----------------------------------------------
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred Securities or Common Securities,
voting separately as a class, who are the record owners of a relevant class of
Securities whose liquidation amount (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions to the date upon which the voting percentages are determined)
represents 66-2/3% or more of the liquidation amount of all outstanding
Securities of such class.
"Special Event" has the meaning set forth in Section 4(c) of the terms
-------------
of the Securities as set forth in Exhibits B and C hereto.
"Sponsor" means Vintage Petroleum, Inc., a Delaware corporation, or
-------
any successor entity in a merger, consolidation or other business combination
transaction in its capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning specified in Section
--------------------------
5.02(b)(ii).
"Successor Property Trustee" means a successor Trustee possessing the
--------------------------
qualifications to act as Property Trustee under Section 5.01(c).
"10% in liquidation amount of the Securities" means, except as
-------------------------------------------
otherwise required by the Trust Indenture Act and except as provided in the
penultimate paragraph of paragraph 5 of Exhibit B hereto, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holder(s) of outstanding Preferred
<PAGE>
8
Securities or Common Securities, voting separately as a class, who are the
record owners of a relevant class of Securities whose liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) represents 10% or more of the liquidation
amount of all outstanding Securities of such class.
"Treasury Regulations" means the income tax regulations, including
--------------------
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
------- --------
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as a Trustee in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement dated [
----------------------
], among the Trust, the Sponsor and [ ], as representative of the
several underwriters named therein.
ARTICLE II
Trust Indenture Act
-------------------
SECTION 2.01. Trust Indenture Act; Application. (a) This Declaration
---------------------------------
is subject to the provisions of the Trust Indenture Act that are required to be
part of this Declaration and shall, to the extent applicable, be governed by
such provisions; (b) if and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by (S)(S) 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control; (c)
the Property Trustee, to the extent permitted by applicable law and/or the rules
and regulations of the Commission, shall be the only Trustee which is a trustee
for the purposes of the Trust Indenture Act; and (d) the application of the
Trust Indenture Act to this Declaration shall not affect the nature of the
Securities as equity securities representing undivided beneficial interests in
the assets of the Trust.
<PAGE>
9
SECTION 2.02. Lists of Holders of Preferred Securities. (a) Each of
-----------------------------------------
the Sponsor and the Regular Trustees on behalf of the Trust shall provide the
Property Trustee with such information as is required under (S) 312(a) of the
Trust Indenture Act at the times and in the manner provided in (S) 312(a); and
(b) the Property Trustee shall comply with its obligations under (S)(S) 310(b),
311 and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Property Trustee. Within 60 days after
--------------------------------
May 15 of each year, the Property Trustee shall provide to the Holders of the
Securities such reports as are required by (S) 313 of the Trust Indenture Act,
if any, in the form, in the manner and at the times provided by (S) 313 of the
Trust Indenture Act. The Property Trustee shall also comply with the
requirements of (S) 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to Property Trustee. Each of the
-------------------------------------
Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee, the Commission and the Holders of the Securities, as
applicable, such documents, reports and information as required by (S)
314(a)(1)-(3) (if any) of the Trust Indenture Act and the compliance
certificates required by (S) 314(a)(4) and (c) of the Trust Indenture Act, any
such certificates to be provided in the form, in the manner and at the times
required by (S) 314(a)(4) and (c) of the Trust Indenture Act (provided that any
certificate to be provided pursuant to (S) 314(a)(4) of the Trust Indenture Act
shall be provided within 120 days of the end of each Fiscal Year).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. Each
-------------------------------------------------
of the Sponsor and the Regular Trustees on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any conditions precedent,
if any, provided for in this Declaration which relate to any of the matters set
forth in (S) 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given pursuant to (S) 314(c) of the Trust Indenture Act shall
comply with (S) 314(e) of the Trust Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject to Section
--------------------------
2.06(c), Holders of Preferred Securities may, by vote of at least a Majority in
liquidation amount of the Preferred Securities, (A) in accordance with the terms
of the Preferred Securities, direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee, or (B) on behalf of the
Holders of all Preferred Securities, waive any past Event of Default in respect
of the Preferred Securities and its consequences; provided
--------
<PAGE>
10
that, if the Event of Default arises out of an Indenture Event of Default:
(i) which is not waivable under the Indenture, the Event of Default
under this Declaration shall also be not waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures affected thereby, or (2) each holder of
Debentures, the Event of Default under this Declaration may only be waived
by, in the case of clause (1) above, the vote of Holders of Preferred
Securities representing such specified percentage of the aggregate
liquidation amount of the Preferred Securities or, in the case of clause
(2) above, each Holder of Preferred Securities affected thereby.
Upon such waiver, any such default shall cease to exist, and any Event of
Default with respect to the Preferred Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Preferred Securities or impair any right consequent thereto.
(b) Subject to Section 2.06(c), Holders of Common Securities may, by
vote of at least a Majority in liquidation amount of the Common Securities, (A)
in accordance with the terms of the Common Securities, direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property Trustee,
or (B) on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences;
provided that if the Event of Default arises out of an Indenture Event of
- --------
Default:
(i) which is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below, the Event of Default under
this Declaration shall also not be waivable; or
(ii) which requires the consent or vote of (1) holders of Debentures
representing a specified percentage greater than a majority in principal
amount of the Debentures or (2) each holder of Debentures affected thereby,
except where the holders of the Common Securities are deemed to have waived
such Event of Default under this Declaration as provided below, the Event
of Default under this Declaration may only be
<PAGE>
11
waived by, in the case of clause (1) above, the vote of Holders of Common
Securities representing such specified percentage of the aggregate
liquidation amount of the Common Securities or, in the case of clause (2)
above, each holder of Common Securities affected thereby; and
provided further that each Holder of Common Securities will be deemed to have
- ----------------
waived any Event of Default with respect to the Common Securities and its
consequences until all Events of Default with respect to the Preferred
Securities have been cured or waived by the Holders of Preferred Securities as
provided in this Declaration or otherwise eliminated and until all Events of
Default with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of this Declaration or the Securities. In the event
that an Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in this Declaration, the Holders
of Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under this Declaration without any further act, vote or consent of the Holders
of the Common Securities. Subject to the foregoing provisions of this Section
2.06(b), upon such waiver, any such default shall cease to exist and any Event
of Default with respect to the Common Securities arising therefrom shall be
deemed to have been cured for every purpose of this Declaration, but no such
waiver shall extend to any subsequent or other default or Event of Default with
respect to the Common Securities or impair any right consequent thereon.
(c) The right of any Holder of Securities to receive payment of
Distributions on the Securities in accordance with this Declaration and the
terms of the Securities set forth in Exhibits B and C on or after the respective
payment dates therefor, or to institute suit for the enforcement of any such
payment on or after such payment dates, shall not be impaired without the
consent of such Holder.
(d) As provided in the terms of the Securities set forth in Exhibits
B and C hereto, a waiver of an Indenture Event of Default by the Property
Trustee at the written direction of the Holders of the Preferred Securities
constitutes a waiver of the corresponding Event of Default under this
Declaration in respect of the Securities.
<PAGE>
12
SECTION 2.07. Disclosure of Information. The disclosure of
--------------------------
information as to the names and addresses of the Holders of the Securities in
accordance with (S) 312 of the Trust Indenture Act, regardless of the source
from which such information was derived, shall not be deemed to be a violation
of any existing law or any law hereafter enacted which does not specifically
refer to (S) 312 of the Trust Indenture Act, nor shall the Property Trustee be
held accountable by reason of mailing any material pursuant to a request made
under (S) 312(b) of the Trust Indenture Act.
ARTICLE III
Organization
------------
SECTION 3.01. Name. The Trust continued by this Declaration is named
-----
"Vintage Petroleum Capital Trust I" as such name may be modified from time to
time by the Regular Trustees following written notice to the Holders of
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 3.02. Office. The address of the principal office of the
-------
Trust is c/o Vintage Petroleum, Inc., 4200 One Williams Center, Tulsa, Oklahoma
74172. Upon ten days' written notice to the Holders (a copy of such notice to
be sent to the Property Trustee and the Delaware Trustee), the Regular Trustees
may change the location of the Trust's principal office. The name of the
registered agent and office of the Trust in the State of Delaware is The
Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. At
any time, the Regular Trustees may designate another registered agent and/or
registered office.
SECTION 3.03. Issuance of the Trust Securities. On [ ], the
---------------------------------
Sponsor, on behalf of the Trust and pursuant to the Original Declaration,
executed and delivered the Underwriting Agreement. On the Closing Date and
contemporaneously with the execution and delivery of this Declaration, the
Regular Trustees, on behalf of the Trust, shall execute and deliver (i) to the
underwriters named in the Underwriting Agreement, a Global Certificate,
registered in the name of the nominee of the initial Clearing Agency as
specified in Section 9.04, in an aggregate amount of [ ] Preferred
Securities having an aggregate liquidation amount of $[ ], against
receipt of the aggregate purchase price of such Preferred Securities of $[ ],
and (ii) to the Sponsor, Common Securities Certificates, registered in the name
of the Sponsor, in an aggregate amount of [ ] Common Securities having an
aggregate liquidation amount of $[ ], against receipt
<PAGE>
13
of the aggregate purchase price of such Common Securities of $[ ].
SECTION 3.04. Purchase of Debentures. On the Closing Date and
-----------------------
contemporaneously with the execution and delivery of this Declaration, the
Regular Trustees, on behalf of the Trust, shall purchase from the Sponsor with
the proceeds received by the Trust from the sale of the Securities on such date
pursuant to Section 3.03, at a purchase price of 100% of the principal amount
thereof, Debentures, registered in the name of the Property Trustee and having
an aggregate principal amount equal to $[ ], and, in satisfaction of the
purchase price for such Debentures, the Regular Trustees, on behalf of the
Trust, shall deliver or cause to be delivered to the Sponsor the sum of $[
]. In the event the overallotment option granted by the Trust with respect to
the Preferred Securities pursuant to the Underwriting Agreement is exercised by
the underwriters named therein, on the Option Closing Date the Regular Trustees,
on behalf of the Trust, shall purchase from the Sponsor with the proceeds
received by the Trust from the sale of the Securities on such date pursuant to
Section 3.03, at a purchase price of 100% of the principal amount thereof,
additional Debentures, registered in the name of the Property Trustee and having
an aggregate principal amount of up to $[ ], and, in satisfaction of the
purchase price for such Debentures, the Regular Trustees, on behalf of the
Trust, shall deliver or cause to be delivered to the Sponsor an amount equal to
the aggregate principal amount of the Debentures being purchased.
SECTION 3.05. Purpose. The exclusive purposes and functions of the
--------
Trust are: (a)(i) to issue and sell Preferred Securities for cash and use the
proceeds of such sales to purchase as trust assets Debentures issued under the
Indenture having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities so issued and sold; (ii) to enter
into such agreements and arrangements as may be necessary in connection with the
sale of Preferred Securities to the initial purchasers thereof (including the
Underwriting Agreement) and to take all actions and exercise such discretion as
may be necessary or desirable in connection therewith and to file such
registration statements or make such other filings under the Securities Act, the
Exchange Act or state securities or "Blue Sky" laws as may be necessary or
desirable in connection therewith and the issuance of the Preferred Securities;
and (iii) to issue and sell Common Securities to The Sponsor for cash and use
the proceeds of such sale to purchase as trust assets an equal aggregate
principal amount of Debentures issued under the Indenture; and (b) except as
otherwise limited herein, to engage in such other activities as are necessary,
convenient or incidental thereto. The Trust shall not borrow money, issue debt
or reinvest
<PAGE>
14
proceeds derived from investments, pledge any of its assets or, at any time
while the Securities are outstanding, otherwise undertake (or permit to be
undertaken) an activity that would result in or cause the Trust to be treated as
anything other than a grantor trust for United States Federal income tax
purposes.
SECTION 3.06. Authority. Subject to the limitations provided in this
----------
Declaration and to the specific duties of the Property Trustee, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee in accordance with its powers shall constitute the
act of and serve to bind the Trust. In dealing with the Trustees acting on
behalf of the Trust, no Person shall be required to inquire into the authority
of the Trustees to bind the Trust. Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of the Trustees as set forth in
this Declaration.
SECTION 3.07. Title to Property of the Trust. Except as provided in
-------------------------------
Section 3.10 with respect to the Debentures and the Property Account or unless
otherwise provided in this Declaration, legal title to all assets of the Trust
shall be vested in the Trust. The Holders shall not have legal title to any
part of the assets of the Trust, but shall have an individual undivided
beneficial interest in the assets of the Trust.
SECTION 3.08. Powers and Duties of the Regular Trustees. The Regular
------------------------------------------
Trustees shall have the exclusive power, authority and duty to cause the Trust,
and shall cause the Trust, to engage in the following activities:
(a) to issue Preferred Securities and Common Securities, in each case
in accordance with this Declaration; provided, however, that the Trust may
-------- -------
issue no more than one series of Preferred Securities and no more than one
series of Common Securities; and provided further that there shall be no
----------------
interests in the Trust other than the Securities and the issuance of
Securities shall be limited to (x) a one-time, simultaneous issuance of
both Preferred Securities and Common Securities on the Closing Date and (y)
any subsequent issuance of both Preferred Securities and Common Securities
on the Option Closing Date pursuant to an exercise of the overallotment
option granted to the underwriters in the Underwriting Agreement;
(b) in connection with the issuance of the Preferred Securities, at
the direction of the Sponsor, to effect or cause to be effected the
filings, and to
<PAGE>
15
execute or cause to be executed the documents, set forth in Section 3.13
and to execute, deliver and perform on behalf of the Trust the Depositary
Agreement;
(c) to acquire as trust assets Debentures with the proceeds of the
sale of the Preferred Securities and Common Securities; provided, however,
-------- -------
that the Regular Trustees shall cause all the Debentures to be held of
record in the name of the Property Trustee for the benefit of the Holders
of the Preferred Securities and the Common Securities;
(d) to cause the Trust to enter into such agreements and arrangements
as may be necessary or desirable in connection with the sale of Preferred
Securities to the initial purchasers thereof and the consummation thereof,
and to take all action, and exercise all discretion, as may be necessary or
desirable in connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Special Event; provided that the Regular Trustees
--------
shall consult with the Sponsor and the Property Trustee before taking or
refraining to take any Ministerial Action in relation to a Special Event;
(f) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including for the
purposes of Section 316(c) of the Trust Indenture Act and with respect to
Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to Holders of the Preferred Securities and the Common
Securities as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless, pursuant to Section 3.10(e), the Property Trustee
has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required by (S)
314(a)(4) of the Trust Indenture
<PAGE>
16
Act, which certificate may be executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to carrying
out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities, the Regular Trustees hereby initially
appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of the Securities set forth in
Exhibits B and C hereto;
(n) to execute all documents or instruments, perform all duties and
powers and do all things for and on behalf of the Trust in all matters
necessary, convenient or incidental to the foregoing;
(o) to take all action which may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a business trust under the laws of the State
of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Securities
or to enable the Trust to effect the purposes for which the Trust has been
created;
(p) to take all action, not inconsistent with this Declaration or with
applicable law, which the Regular Trustees determine in their discretion to
be reasonable and necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.08, in order that:
(i) the Trust will not be deemed to be an Investment Company
required to be registered under the Investment Company Act;
(ii) the Trust will not be classified for United States Federal
income tax purposes as an association taxable as a corporation or a
partnership and will be treated as a grantor trust for United States
Federal income tax purposes; and
(iii) the Trust will comply with any requirements imposed by any
taxing authority on holders of instruments treated as indebtedness for
Unites States Federal income tax purposes;
<PAGE>
17
provided that such action does not adversely affect the interests of
--------
Holders;
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to
the Trust to be duly prepared and filed by the Regular Trustees, on behalf
of the Trust; and
(r) subject to the requirements of Rule 3a-7 and (S) 317(b) of the
Trust Indenture Act, to appoint one or more Paying Agents in addition to
the Property Trustee.
The Regular Trustees must exercise the powers set forth in this
Section 3.08 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.05 and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
Subject to this Section 3.08, the Regular Trustees shall have none of
the powers nor any of the authority of the Property Trustee set forth in Section
3.10.
SECTION 3.09. Prohibition of Actions by Trust and Trustees. The
---------------------------------------------
Trust shall not, and no Trustee (including the Property Trustee) shall cause the
Trust to, engage in any activity other than as required or authorized by this
Declaration. In particular, the Trust shall not, and no Trustee (including the
Property Trustee) shall cause the Trust to:
(a) invest any proceeds received by the Trust from holding the
Debentures, but shall promptly distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the Debentures;
(e) possess any power or otherwise act in such a way as to vary the
Trust assets or the terms of the Securities in any way whatsoever;
(f) issue any securities or other evidences of beneficial ownership
of, or beneficial interests in, the Trust other than the Securities;
<PAGE>
18
(g) incur any indebtedness for borrowed money; or
(h)(i) direct the time, method and place of exercising any trust or
power conferred upon the Debenture Trustee with respect to the Debentures,
(ii) waive any past default that is waivable under Section 6.06 of the
Indenture, (iii) exercise any right to rescind or annul any declaration
that the principal of all of the Debentures shall be due and payable or
(iv) consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, unless in the case
of this clause (h) the Property Trustee shall have received an unqualified
opinion of nationally recognized independent tax counsel recognized as
expert in such matters to the effect that such action will not cause the
Trust to be classified for United States Federal income tax purposes as an
association taxable as a corporation or partnership and that the Trust will
continue to be classified as a grantor trust for United States Federal
income tax purposes.
SECTION 3.10. Powers and Duties of the Property Trustee. (a) The
------------------------------------------
Debentures shall be held of record in the name of the Property Trustee in trust
for the benefit of the Holders of the Securities. The right, title and interest
of the Property Trustee to the Debentures shall vest automatically in each
Person who may hereafter be appointed as Property Trustee in accordance with
Article V. Such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or, if the Property Trustee
does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing bank
account (the "Property Account") in the name of and under the exclusive
control of the Property Trustee on behalf of the Holders of the Securities
and on the receipt of payments of funds made in respect of the Debentures
held by the Property Trustee, deposit such funds into the Property Account
and, without any further acts of the Property Trustee or the Regular
Trustees, promptly make payments to the Holders of the Preferred Securities
and Common Securities from the Property Account in accordance with Section
6.01. Funds in the Property Account shall be held uninvested, and without
liability for interest thereon, until disbursed in accordance with this
Declaration. The Property Account shall be an account
<PAGE>
19
which is maintained with a banking institution whose long term unsecured
indebtedness is rated by a "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act, at least equal to (but in no event less than "A" or the
equivalent) the rating assigned to the Preferred Securities by a nationally
recognized statistical rating organization;
(ii) engage in such ministerial activities as shall be necessary or
appropriate to effect promptly the redemption of the Preferred Securities
and the Common Securities to the extent the Debentures are redeemed or
mature;
(iii) upon notice of distribution issued by the Regular Trustees in
accordance with the terms of the Preferred Securities and the Common
Securities, engage in such ministerial activities as shall be necessary or
appropriate to effect promptly, pursuant to the terms of the Securities,
the distribution of Debentures to Holders of Securities upon the occurrence
of a Special Event; and
(iv) have the legal power to exercise all of the rights, powers and
privileges of a holder of the Debentures under the Indenture and, if an
Event of Default occurs and is continuing, the Property Trustee, subject to
Section 2.06(b), shall, for the benefit of the Holders of the Securities,
enforce its rights as holder of the Debentures under the Indenture, subject
to the rights of the Holders of the Preferred Securities pursuant to the
terms of this Declaration, the Business Trust Act and the Trust Indenture
Act.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities set forth in Exhibits B and C hereto.
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default or the Property Trustee's duties
and obligations under this Declaration, the Business Trust Act or the Trust
Indenture Act.
(f) All moneys deposited in the Property Account, and all Debentures
held by the Property Trustee for the benefit of the Holders of the Securities,
will not be subject to any right, charge, security interest, lien or claim of
any kind in favor of, or for the benefit of, the Property Trustee or its agents
or their creditors.
<PAGE>
20
(g) The Property Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities, transmit by mail, first class
postage prepaid, to the Holders of the Securities, as their names and addresses
appear upon the register, notice of all defaults with respect to the Securities
known to the Property Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purposes of this Section
3.10(g) being hereby defined to be an Indenture Event of Default, not including
any periods of grace provided for in the Indenture and irrespective of the
giving of any notice provided therein); provided that, except in the case of
--------
default in the payment of the principal of (or premium, if any) or interest on
any of the Debentures, the Property Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers of the Property
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities. The Property Trustee shall not be
deemed to have knowledge of any default, except (i) a default in the payment of
principal of (or premium, if any) or interest on the Debentures or (ii) any
default as to which the Property Trustee shall have received written notice or a
Responsible Officer charged with the administration of this Declaration shall
have obtained written notice.
(h) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds thereof
distributed to the Holders of Securities pursuant to the terms of the
Securities; or
(ii) a Successor Property Trustee has been appointed and accepted that
appointment in accordance with Article V.
(i) The Property Trustee shall act as paying agent in respect of the
Common Securities and the Preferred Securities and, subject to Section 3.08(r),
may authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the Trust with respect
to the Preferred Securities. Any such Paying Agent shall comply with (S) 317(b)
of the Trust Indenture Act. Any Paying Agent may be removed by the Property
Trustee, after consultation with the Regular Trustees, at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee, subject to Section 3.08(r).
(j) The Property Trustee shall give prompt written notice to the
Holders of the Securities of any
<PAGE>
21
notice received by it from The Sponsor of its election to defer payments of
interest on the Debentures by extending the interest payment period with respect
thereto.
(k) Subject to this Section 3.10, the Property Trustee shall have
none of the powers or the authority of the Regular Trustees set forth in Section
3.08.
(1) The Property Trustee shall exercise the powers, duties and rights
set forth in this Section 3.10 and Section 3.12 in a manner which is consistent
with the purposes and functions of the Trust set out in Section 3.05, and the
Property Trustee shall not take any action which is inconsistent with the
purposes and functions of the Trust set forth in Section 3.05.
SECTION 3.11. Delaware Trustee. Notwithstanding any other provision
-----------------
of this Declaration other than Section 5.01(a)(3), the Delaware Trustee shall
not be entitled to exercise any powers, nor shall the Delaware Trustee have any
of the duties and responsibilities of the Regular Trustees or the Property
Trustee described in this Declaration. Except as set forth in Section
5.01(a)(3), the Delaware Trustee shall be a Trustee for the sole and limited
purpose of fulfilling the requirements of (S) 3807 of the Business Trust Act.
In the event the Delaware Trustee shall at any time be required to take any
action or perform any duty hereunder, the Delaware Trustee shall be entitled to
the benefits of Section 3.12(b)(ii), (iii) and (iv) and Section 3.12(c). No
implied covenants or obligations shall be read into this Declaration against the
Delaware Trustee.
SECTION 3.12. Certain Rights and Duties of the Property Trustee. (a)
--------------------------------------------------
The Property Trustee, before the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Declaration, and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Property Trustee
shall exercise such of the rights and powers vested in it by this Declaration,
and use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
<PAGE>
22
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Property Trustee shall be
determined solely by the express provisions of this Declaration, and
the Property Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this
Declaration, and no implied covenants or obligations shall be read
into this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the Property
Trustee, the Property Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Property
Trustee and conforming to the requirements of this Declaration; but in
the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of
this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders as provided herein relating to the time,
method and place of conducting any proceeding for any remedy available to
the Property Trustee hereunder or under the Indenture, or exercising any
trust or power conferred upon the Property Trustee under this Declaration;
and
(iv) no provision of this Declaration shall require the Property
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of
<PAGE>
23
any of its rights or powers, if it shall have reasonable ground for
believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Declaration or adequate indemnity
against such risk or liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the Property
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Property
Trustee (unless other evidence is herein specifically prescribed) may, in
the absence of bad faith on its part and, if the Trust is excluded from the
definition of Investment Company solely by means of Rule 3a-7, subject to
the requirements of Rule 3a-7, request and rely upon a certificate, which
shall comply with the provisions of (S) 314(e) of the Trust Indenture Act,
signed by any two of the Regular Trustees or by an authorized officer of
the Sponsor, as the case may be;
(ii) the Property Trustee (A) may consult with counsel (which may be
counsel to the Sponsor or any of its Affiliates and may include any of its
employees) selected by it in good faith and with due care and the written
advice or opinion of such counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice and opinion and (B) shall have
the right at any time to seek instructions concerning the administration of
this Declaration from any court of competent jurisdiction;
(iii) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Property Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney appointed
by it in good faith and with due care;
(iv) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Declaration at the request
or direction of any Holders, unless such Holders shall have offered to the
Property Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying
<PAGE>
24
with such request or direction; provided that nothing contained in this
--------
clause (iv) shall relieve the Trustee of the obligation, upon the
occurrence of an Event of Default (which has not been cured or waived) to
exercise such of the rights and powers vested in it by this Declaration,
and to use the same degree of care and skill in such exercise, as a prudent
person would exercise or use under the circumstances in the conduct of his
or her own affairs;
(v) any action taken by the Property Trustee or its agents hereunder
shall bind the Trust and the Holders of the Securities and the signature of
the Property Trustee or its agents alone shall be sufficient and effective
to perform any such action; and no third party shall be required to inquire
as to the authority of the Property Trustee to so act, or as to its
compliance with any of the terms and provisions of this Declaration, both
of which shall be conclusively evidenced by the Property Trustee's or its
agent's taking such action;
(vi) the Property Trustee may rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, security or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties; and
(vii) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, bond, security or other paper or document, but
the Property Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
SECTION 3.13. Registration Statement and Related Matters. In
-------------------------------------------
accordance with the Original Declaration, The Sponsor and the Trustees have
authorized and directed, and hereby confirm the authorization of, The Sponsor,
as the sponsor of the Trust, (i) to file with the Commission and execute, in
each case on behalf of the Trust, (a) the Registration Statement on Form S-3
(File Nos. [ ]) (the "1933 Act Registration Statement") including any
amendments thereto and any further pre-effective or post-effective amendments to
such Registration Statement, relating to the registration under the Securities
Act of, among other things, the Preferred Securities of the Trust and the
related guarantees of such Preferred Securities by the Sponsor and (b) a
Registration Statement on Form 8-A or
<PAGE>
25
other appropriate form (the "1934 Act Registration Statement") (including all
pre-effective and post-effective amendments thereto) relating to the
registration of the Preferred Securities of the Trust and the related guarantees
of such Preferred Securities by the Sponsor under Section 12(b) of the Exchange
Act; (ii) to file with the New York Stock Exchange and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the New York Stock
Exchange; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "Blue
Sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable and (iv) to negotiate and execute on behalf of the Trust
the Underwriting Agreement. In the event that any filing referred to in clauses
(i)-(iii) above is required by the rules and regulations of the Commission, the
New York Stock Exchange or state securities or blue sky laws, to be executed on
behalf of the Trust by the Trustees, the Regular Trustees, in their capacities
as Trustees of the Trust, are hereby authorized and directed to join in any such
filing and to execute on behalf of the Trust any and all of the foregoing, it
being understood that the Property Trustee and the Delaware Trustee, in their
capacities as Trustees of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, the New York Stock Exchange or
state securities or blue sky laws. In connection with all of the foregoing, the
Sponsor and each Trustee, solely in his, her or its capacity as a Trustee of the
Trust, have constituted and appointed, and hereby confirm the appointment of
[ ], [ ] and [ ], and each of them, as his, her or its, as the
case may be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Trustee or in the
Sponsor's or such Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them,
<PAGE>
26
or their or his or her substitute or substitutes, shall do or cause to be done
by virtue hereof.
SECTION 3.14. Filing of Amendments to Certificate of Trust. The
---------------------------------------------
Certificate of Trust as filed with the Secretary of State of the State of
Delaware on October 15, 1997, is attached hereto as Exhibit A. On or after the
date of execution of this Declaration, the Trustees shall cause the filing with
the Secretary of State of the State of Delaware of such amendments to the
Certificate of Trust as the Trustees shall deem necessary or desirable.
SECTION 3.15. Execution of Documents by Regular Trustees. Unless
-------------------------------------------
otherwise determined by the Regular Trustees and except as otherwise required by
the Business Trust Act with respect to the Certificate of Trust or otherwise, a
majority of, or if there are only two, both of, the Regular Trustees are
authorized to execute and deliver on behalf of the Trust any documents which the
Regular Trustees have the power and authority to execute or deliver pursuant to
this Declaration.
SECTION 3.16. Trustees Not Responsible for Recitals or Issuance of
----------------------------------------------------
Securities. The recitals contained in this Declaration and the Securities shall
- -----------
be taken as the statements of the Sponsor and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as
to the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.17. Duration of Trust. The Trust, absent termination
------------------
pursuant to the provisions of Article VIII hereof, shall have existence until [
], 20[ ].
ARTICLE IV
Sponsor
-------
SECTION 4.01. Purchase of Common Securities by Sponsor. On the
-----------------------------------------
Closing Date, the Sponsor will purchase all of the Common Securities issued by
the Trust at the same time as the Preferred Securities to be issued on such date
are issued, such purchase to be in an amount equal to 3% of the total capital of
the Trust. On the Option Closing Date, the Sponsor shall purchase all of the
Common Securities issued by the Trust at the same time as the Preferred
Securities to be issued on such date are issued, such purchase to be in such
amount so that the Common Securities continue to represent 3% of the total
capital of the Trust.
<PAGE>
27
SECTION 4.02. Expenses. (a) In connection with the purchase of the
---------
Debentures by the Trust, the Sponsor, in its capacity as Sponsor and not as a
Holder, shall be responsible for and shall pay for all debts and obligations
(other than with respect to the Securities) and all costs and expenses of the
Trust (including, but not limited to, costs and expenses relating to the
organization of the Trust, the issuance of the Preferred Securities to initial
purchasers thereof, the fees and expenses (including reasonable counsel fees and
expenses) of the Trustees (including any amounts payable under Article X), the
costs and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, Paying Agent(s), registrars, transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses and
costs and expenses incurred in connection with the disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the Trust,
the Sponsor, in its capacity as Sponsor and not as a Holder, will pay any and
all taxes (other than United States withholding taxes attributable to the Trust
or its assets) and all liabilities, costs and expenses with respect to such
taxes of the Trust.
(c) The Sponsor's obligations under this Section 4.02 shall be for
the benefit of, and shall be enforceable by, any Person to whom any such debts,
obligations, costs, expenses and taxes are owed (a "Creditor") whether or not
such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor. The Sponsor agrees to execute such additional agreements
as may be necessary or desirable in order to give full effect to the provisions
of this Section 4.02.
ARTICLE V
Trustees
--------
SECTION 5.01. Number of Trustees; Qualifications. (a) Except as
-----------------------------------
provided in (1) below, the number of Trustees initially shall be four (4). At
any time (i) before the issuance of the Securities, the Sponsor may, by written
instrument, increase or decrease the number of, and appoint, remove and replace
the, Trustees, and (ii) after the issuance of the Securities the number of
Trustees may be
<PAGE>
28
increased or decreased solely by, and Trustees may be appointed, removed or
replaced solely by, vote of Holders of Common Securities representing a Majority
in liquidation amount of the Common Securities voting as a class; provided that
--------
in any case:
(1) the number of Trustees shall be at least five (5) unless the
Trustee that acts as the Property Trustee also acts as the Delaware
Trustee, in which case the number of Trustees shall be at least three (3);
(2) at least a majority of the Trustees shall at all times be officers
or employees of The Sponsor;
(3) if required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be either a natural person who is a resident of the State
of Delaware or, if not a natural person, an entity which has its principal
place of business in the State of Delaware and otherwise is permitted to
act as a Trustee hereunder under the laws of the State of Delaware, except
that if the Property Trustee has its principal place of business in the
State of Delaware and otherwise is permitted to act as a Trustee hereunder
under the laws of the State of Delaware, then the Property Trustee shall
also be the Delaware Trustee and Section 3.09 shall have no application;
and
(4) there shall at all times be a Property Trustee hereunder which
shall satisfy the requirements of Section 5.01(c).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed representatives.
(b) The initial Regular Trustees shall be:
S. Craig George
William C. Barnes
Michael F. Meimerstorf
In care of Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
(c) There shall at all times be one Trustee which shall act as
Property Trustee. In order to act as Property Trustee hereunder, such Trustee
shall:
(i) not be an Affiliate of the Sponsor;
<PAGE>
29
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least $50,000,000, and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising
or examining authority referred to above, then for the purposes of this
Section 5.01(c)(ii), the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published; and
(iii) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7 and to the extent Rule 3a-7 requires
a trustee having certain qualifications to hold title to the "eligible
assets" (as defined in Rule 3a-7) of the Trust, the Property Trustee shall
possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.02(d). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of (S) 310(b) of the Trust Indenture Act, the Property Trustee and the
Holders of the Common Securities (as if such Holders were the obligor referred
to in (S) 310(b) of the Trust Indenture Act) shall in all respects comply with
the provisions of (S) 310(b) of the Trust Indenture Act. The Preferred
Guarantee shall be deemed to be specifically described in this Declaration for
the purposes of clause (i) of the first proviso contained in (S) 310(b) of the
Trust Indenture Act.
The initial Trustee which shall serve as the Property Trustee is The
Chase Manhattan Bank, a national banking association incorporated and existing
under the laws of the United States of America, whose address is as set forth in
Section 14.01(b).
(d) The initial Trustee which shall serve as the Delaware Trustee is
Chase Manhattan Bank Delaware, a corporation incorporated and existing under the
laws of New York, whose address is as set forth in Section 14.01(c).
(e) Any action taken by Holders of Common Securities pursuant to this
Article V shall be taken at a
<PAGE>
30
meeting of Holders of Common Securities convened for such purpose or by written
consent as provided in Section 12.02.
(f) No amendment may be made to this Section 5.01 which would change
any rights with respect to the number, existence or appointment and removal of
Trustees, except with the consent of each Holder of Common Securities.
SECTION 5.02. Appointment, Removal and Resignation of Trustees. (a)
-------------------------------------------------
Subject to Section 5.02(b), Trustees may be appointed or removed without cause
at any time:
(i) until the issuance of the Securities, by written instrument
executed by the Sponsor; and
(ii) after the issuance of the Securities by vote of the Holders of a
Majority in liquidation amount of the Common Securities voting as a class.
(b)(i) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.02(a) until a Successor Property Trustee
possessing the qualifications to act as Property Trustee under Section
5.01(c) has been appointed and has accepted such appointment by written
instrument executed by such Successor Property Trustee and delivered to the
Regular Trustees, the Sponsor and the Property Trustee being removed; and
(ii) the Trustee that acts as Delaware Trustee shall not be removed in
accordance with Section 5.02(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Section 5.01(a)(3) (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(c) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
(d) Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation
<PAGE>
31
shall take effect upon such delivery or upon such later date as is specified
therein; provided, however, that:
-------- -------
(i) no such resignation of the Trustee that acts as the Property
Trustee shall be effective until a Successor Property Trustee possessing
the qualifications to act as Property Trustee under Section 5.01(c) has
been appointed and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Trust, the Sponsor and
the resigning Property Trustee; and
(ii) no such resignation of the Trustee that acts as the Delaware
Trustee shall be effective until a Successor Delaware Trustee has been
appointed and has accepted such appointment by instrument executed by such
Successor Delaware Trustee and delivered to the Trust, the Sponsor and the
resigning Delaware Trustee.
(e) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.02 within 60 days after delivery to the Sponsor and the Trust of a Resignation
Request, the resigning Property Trustee or Delaware Trustee may petition any
court of competent jurisdiction for appointment of a Successor Property Trustee
or Successor Delaware Trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a Successor Property Trustee
or Successor Delaware Trustee, as the case may be.
(f) The Sponsor shall provide notice to the Property Trustee of any
resignation or removal of a Regular Trustee.
SECTION 5.03. Vacancies Among Trustees. If a Trustee ceases to hold
-------------------------
office for any reason and the number of Trustees is not reduced pursuant to
Section 5.01 or if the number of Trustees is increased pursuant to Section 5.01,
a vacancy shall occur. A resolution certifying the existence of such vacancy by
a majority of the Regular Trustees shall be conclusive evidence of the existence
of such vacancy. The vacancy shall be filled with a Trustee appointed in
accordance with the requirements of this Article V.
SECTION 5.04. Effect of Vacancies. The death, resignation,
--------------------
retirement, removal, bankruptcy, dissolution, liquidation, incompetence or
incapacity to perform the duties of a Trustee, or any one of them, shall not
operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur until such vacancy is filled as provided in this Article V,
the Regular Trustees in office, regardless of their number, shall have all the
powers
<PAGE>
32
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.05. Meetings. Meetings of the Regular Trustees shall be
---------
held from time to time upon the call of any Trustee. Regular meetings of the
Regular Trustees may be held at a time and place fixed by resolution of the
Regular Trustees. Notice of any in-person meeting of the Regular Trustees shall
be hand delivered or otherwise delivered in writing (including by facsimile,
with a hard copy by overnight courier) not less than 48 hours before such
meeting. Notice of any telephonic meeting of the Regular Trustees or any
committee thereof shall be hand delivered or otherwise delivered in writing
(including by facsimile, with a hard copy by overnight courier) not less than 24
hours before such meeting. Notices shall contain a brief statement of the time,
place and anticipated purposes of the meeting. The presence (whether in person
or by telephone) of a Regular Trustee at a meeting shall constitute a waiver of
notice of such meeting except where a Regular Trustee attends a meeting for the
express purpose of objecting to the transaction of any activity on the ground
that the meeting has not been lawfully called or convened. Unless provided
otherwise in this Declaration, any action of the Regular Trustees may be taken
at a meeting by vote of a majority of the Regular Trustees present (whether in
person or by telephone) and eligible to vote with respect to such matter;
provided that a Quorum is present, or without a meeting by the unanimous written
- --------
consent of the Regular Trustees.
SECTION 5.06. Delegation of Power. (a) Any Regular Trustee may, by
--------------------
power of attorney consistent with applicable law, delegate to any other natural
person over the age of 21 his or her power for the purpose of executing any
registration statement or amendment thereto or other document or schedule filed
with the Commission or making any other governmental filing (including, without
limitation the filings referred to in Section 3.13).
(b) The Regular Trustees shall have the power to delegate from time
to time to such of their number or to officers of the Trust or to officers of
the Sponsor the doing of such things and the execution of such instruments
either in the name of the Trust or the names of the Regular Trustees or
otherwise as the Regular Trustees may deem expedient, to the extent such
delegation is not prohibited by applicable law or contrary to the provisions of
the Trust, as set forth herein.
<PAGE>
33
ARTICLE VI
Distributions
-------------
SECTION 6.01. Distributions. Holders shall receive periodic
--------------
distributions, redemption payments and liquidation distributions in accordance
with the applicable terms of the relevant Holder's Securities ("Distributions").
Distributions shall be made to the Holders of Preferred Securities and Common
Securities in accordance with the terms of the Securities as set forth in
Exhibits B and C hereto. If and to the extent that the Sponsor makes a payment
of interest (including Compounded Interest (as defined in the Indenture)),
premium or principal on the Debentures held by the Property Trustee (the amount
of any such payment being a "Payment Amount"), the Property Trustee shall and is
directed to promptly make a Distribution of the Payment Amount to Holders in
accordance with the terms of the Securities as set forth in Exhibits B and C
hereto.
ARTICLE VII
Issuance of Securities
----------------------
SECTION 7.01. General Provisions Regarding Securities. (a) The
----------------------------------------
Regular Trustees shall issue on behalf of the Trust Securities in fully
registered form representing undivided beneficial interests in the assets of the
Trust in accordance with Section 7.01(b) and for the consideration specified in
Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust one class
of preferred securities representing preferred undivided beneficial interests in
the assets of the Trust having such terms as are set forth in Exhibit B (the
"Preferred Securities") which terms are incorporated by reference in, and made a
part of, this Declaration as if specifically set forth herein, and one class of
common securities representing common undivided beneficial interests in the
assets of the Trust having such terms as are set forth in Exhibit C (the "Common
Securities") which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by the
Regular Trustees (or if there are more than two Regular Trustees by any two of
the Regular Trustees). Such signatures may be the manual or facsimile signatures
of the present or any future Regular Trustee. Typographical and other minor
errors or defects in any such reproduction
<PAGE>
34
of any such signature shall not affect the validity of any Certificate. In case
any Regular Trustee of the Trust who shall have signed any of the Certificates
shall cease to be such Regular Trustee before the Certificate so signed shall be
delivered by the Trust, such Certificate nevertheless may be delivered as though
the person who signed such Certificate had not ceased to be such Regular
Trustee; and any Certificate may be signed on behalf of the Trust by such
persons as, at the actual date of the execution of such Certificate, shall be
the Regular Trustees of the Trust, although at the date of the execution and
delivery of the Declaration any such person was not such a Regular Trustee.
Certificates shall be printed, lithographed or engraved or may be produced in
any other manner as is reasonably acceptable to the Regular Trustees, as
evidenced by their execution thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements as
the Regular Trustees may deem appropriate, or as may be required to comply with
any law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage. Pending the preparation of definitive Certificates, the
Regular Trustees on behalf of the Trust may execute temporary Certificates
(printed, lithographed or typewritten), in substantially the form of the
definitive Certificates in lieu of which they are issued, but with such
omissions, insertions and variations as may be appropriate for temporary
Certificates, all as may be determined by the Regular Trustees. Each temporary
Certificate shall be executed by the Regular Trustees on behalf of the Trust
upon the same conditions and in substantially the same manner, and with like
effect, as definitive Certificates. Without unnecessary delay, the Regular
Trustees on behalf of the Trust will execute and furnish definitive Certificates
and thereupon any or all temporary Certificates may be surrendered to the
transfer agent and registrar in exchange therefor (without charge to the
Holders). Each Certificate whether in temporary or definitive form shall be
countersigned by the manual or facsimile signature of an authorized signatory of
the Person acting as registrar and transfer agent for the Securities, which
shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable.
<PAGE>
35
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
(g) Upon issuance of the Securities as provided in this Declaration,
the Regular Trustees on behalf of the Trust shall return to the Sponsor the $10
constituting initial trust assets as set forth in the Original Declaration.
ARTICLE VIII
Dissolution and Termination of Trust
------------------------------------
SECTION 8.01. Dissolution and Termination of Trust. The Trust shall
-------------------------------------
dissolve:
(i) when all of the Securities shall have been called for redemption
and the amounts necessary for redemption thereof shall have been paid to
the Holders of Securities in accordance with the terms of the Securities;
or
(ii) upon an event of dissolution in accordance with the terms of the
Securities; or
(iii) upon the expiration of the term of the Trust as set forth in
Section 3.17,
and thereafter any one of the Trustees shall, after paying or making reasonable
provision to pay all claims and obligations of the Trust in accordance with
Section 3808(e) of the Business Trust Act, file a certificate of cancellation
with the Secretary of State of the State of Delaware and the Trust shall
terminate. The Trustees shall so file such a certificate as soon as practicable
after the occurrence of an event referred to in this Section 8.01.
The provisions of Sections 3.12 and 4.02 and Article X shall survive
the termination of the Trust.
ARTICLE IX
Transfer of Interests
---------------------
SECTION 9.01. Transfer of Securities. (a) Securities may only be
-----------------------
transferred, in whole or in part, in accordance with the terms and conditions
set forth in this Declaration. Any transfer or purported transfer of
<PAGE>
36
any Security not made in accordance with this Declaration shall be null and
void.
(b) Subject to this Article IX, Preferred Securities shall be freely
transferable.
(c) Subject to this Article IX, The Sponsor and any Related Party may
only transfer Common Securities to The Sponsor or a Related Party; provided that
any such transfer shall be subject to the condition that the transferor shall
have obtained (1) either a ruling from the Internal Revenue Service or an
unqualified written opinion addressed to the Trust and delivered to the Trustees
of nationally recognized independent tax counsel experienced in such matters to
the effect that such transfer will not (i) cause the Trust to be treated as
issuing a class of interests in the Trust differing from the class of interests
represented by the Common Securities originally issued to The Sponsor, (ii)
result in the Trust acquiring or disposing of, or being deemed to have acquired
or disposed of, an asset, or (iii) result in or cause the Trust to be treated as
anything other than a grantor trust for United States Federal income tax
purposes and (2) an unqualified written opinion addressed to the Trust and
delivered to the Trustees of a nationally recognized independent counsel
experienced in such matters that such transfer will not cause the Trust to be an
Investment Company or controlled by an Investment Company.
SECTION 9.02. Transfer of Certificates. The Regular Trustees shall
-------------------------
cause to be kept at an office or agency to be maintained by the Trust a register
in which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Certificates and of transfers of
Certificates, which will be effected without charge but only upon payment (with
such indemnity as the Trust or the Registrar (as defined below) may require) in
respect of any tax or other government charges which may be imposed in relation
to it. The Property Trustee will be the initial registrar and transfer agent
(the "Registrar") for the purpose of registering Certificates and transfers of
Certificates as provided herein.
Upon surrender for registration of transfer of any Certificate at the
office or agency of the Registrar, the Regular Trustees shall execute and the
Registrar shall countersign in accordance with section 7.01(c) one or more new
Certificates of any authorized denominations and of a like aggregate liquidation
amount to be issued in the name of the designated transferee or transferees.
Every Certificate surrendered for registration of transfer shall be accompanied
by a written instrument of transfer in form satisfactory to the Trust duly
executed by the Holder or such Holder's attorney duly authorized in writing.
Each
<PAGE>
37
Certificate surrendered for registration of transfer shall be canceled by the
Regular Trustees. A transferee of a Certificate shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.03. Deemed Security Holders. The Trustees may treat the
------------------------
Person in whose name any Certificate shall be registered on the books and
records of the Trust as the sole holder of such Certificate and of the
Securities represented by such Certificate for purposes of receiving
Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trustees shall have actual or other notice
thereof.
SECTION 9.04. Book Entry Interests. Unless otherwise specified in
---------------------
the terms of the Preferred Securities, the Preferred Securities Certificates, on
original issuance (including Preferred Securities, if any, issued on the Option
Closing Date pursuant to the exercise of the overallotment option set forth in
the Underwriting Agreement), will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.07. Unless and until definitive, fully registered Preferred Security
Certificates (the "Definitive Preferred Security Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 9.07:
(i) the provisions of this Section 9.04 shall be in full force and
effect;
(ii) the Trust and the Trustees shall be entitled to deal with the
Clearing Agency for all purposes of this Declaration (including the payment
of Distributions on the Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
<PAGE>
38
(iii) to the extent that the provisions of this Section 9.04 conflict
with any other provisions of this Declaration, the provisions of this
Section 9.04 shall control; and
(iv) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Clearing Agency and shall be limited to those
established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants. DTC will make book entry transfers among the Clearing Agency
Participants and receive and transmit payments of Distributions on the
Global Certificates to such Clearing Agency Participants.
SECTION 9.05. Notices to Holders of Certificates. Whenever a notice
-----------------------------------
or other communication to the Holders is required to be given under this
Declaration, unless and until Definitive Preferred Security Certificates shall
have been issued pursuant to Section 9.07, the relevant Trustees shall give all
such notices and communications, specified herein to be given to Preferred
Securities Holders, to the Clearing Agency and, with respect to any Preferred
Security Certificate registered in the name of a Clearing Agency or the nominee
of a Clearing Agency, the Trustees shall, except as set forth herein, have no
notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.06. Appointment of Successor Clearing Agency. If any
-----------------------------------------
Clearing Agency elects to discontinue its services as securities depository with
respect to the Preferred Securities, the Regular Trustees may, in their sole
discretion, appoint a successor Clearing Agency with respect to the Preferred
Securities.
SECTION 9.07. Definitive Preferred Securities Certificates. If (i) a
---------------------------------------------
Clearing Agency elects to discontinue its services as securities depository with
respect to the Preferred Securities and a successor Clearing Agency is not
appointed within 90 days after such discontinuance pursuant to Section 9.06 or
(ii) the Regular Trustees elect after consultation with the Sponsor to terminate
the book entry system through the Clearing Agency with respect to the Preferred
Securities, then (x) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities and (y) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration instructions, the Regular Trustees
shall cause definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall
<PAGE>
39
be liable for any delay in delivery of such instructions and each of them may
conclusively rely on, and shall be protected in relying on, such instructions.
SECTION 9.08. Mutilated, Destroyed, Lost or Stolen Certificates. If
--------------------------------------------------
(a) any mutilated Certificates should be surrendered to the Registrar, or if the
Registrar shall receive evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there shall be delivered to the Trustees such
security or indemnity as may be required by them to keep each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any two Regular Trustees on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.08,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
Limitation of Liability; Indemnification
----------------------------------------
SECTION 10.01 Exculpation. (a) No Indemnified Person shall be
------------
liable, responsible or accountable in damages or otherwise to the Trust or any
Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on
<PAGE>
40
behalf of the Trust, including information, opinions, reports or statements as
to the value and amount of assets, liabilities, profits, losses or any other
facts pertinent to the existence and amount of assets from which Distributions
to Holders of Securities might properly be paid.
(c) Pursuant to (S) 3803(a) of the Business Trust Act, the Holders of
Securities, in their capacities as Holders, shall be entitled to the same
limitation of liability that is extended to stockholders of private corporations
for profit organized under the General Corporation Law of the State of Delaware.
SECTION 10.02. Indemnification and Compensation. (a) To the fullest
---------------------------------
extent permitted by applicable law, the Sponsor shall indemnify and hold
harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope
of authority conferred on such Indemnified Person by this Declaration, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
10.02(a).
(c) The Sponsor agrees to pay the Property Trustee and the Delaware
Trustee from time to time such compensation for all services rendered by the
Property Trustee and the Delaware Trustee hereunder as may be mutually agreed
upon in writing by the Sponsor and the Property Trustee or the Delaware Trustee,
as the case may be, and, except as otherwise expressly provided herein, to
reimburse the Property Trustee and the Delaware Trustee upon its or their
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee or the Delaware Trustee, as the case may be, in
accordance with the provisions of this Declaration, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad
faith.
<PAGE>
41
SECTION 10.03. Outside Businesses. Any Covered Person, the Sponsor,
-------------------
the Delaware Trustee and the Property Trustee may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, similar or dissimilar to the business of the Trust, and the
Trust and the Holders of Securities shall have no rights by virtue of this
Declaration in and to such independent ventures or the income or profits derived
therefrom, and the pursuit of any such venture, even if competitive with the
business of the Trust, shall not be deemed wrongful or improper. None of the
Covered Persons, the Sponsor, the Delaware Trustee or the Property Trustee shall
be obligated to present any particular investment or other opportunity to the
Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the
Delaware Trustee and the Property Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular investment or other opportunity. Any Covered Person,
the Delaware Trustee and the Property Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
ARTICLE XI
Accounting
----------
SECTION 11.01. Fiscal Year. The fiscal year ("Fiscal Year") of the
------------
Trust shall be the calendar year, or such other year as is required by the Code.
SECTION 11.02. Certain Accounting Matters. (a) At all times during
---------------------------
the existence of the Trust, the Regular Trustees shall keep, or cause to be
kept, full books of account, records and supporting documents, which shall
reflect in reasonable detail each transaction of the Trust. The books of account
shall be maintained on the accrual method of accounting, in accordance with
generally accepted accounting principles consistently applied. The Trust shall
use the accrual method of accounting for United States Federal income tax
purposes. The books and records of the Trust, together with a copy of this
Declaration and a certified copy of the Certificate of Trust, or any amendment
thereto, shall at all times be maintained at the principal office of the Trust
and shall be open for inspection by any Holder or its duly authorized
representative for any purpose reasonably related to its interest in the Trust
during normal business hours.
<PAGE>
42
(b) The Regular Trustees shall, as soon as available after the end of
each Fiscal Year of the Trust, cause to be prepared and mailed to each Holder of
Securities unaudited financial statements of the Trust for such Fiscal Year,
prepared in accordance with generally accepted accounting principles; provided
--------
that if the Trust is required to comply with the periodic reporting requirements
of Sections 13(a) or 15(d) of the Exchange Act, such financial statements for
such Fiscal Year shall be examined and reported on by a firm of independent
certified public accountants selected by the Regular Trustees (which firm may be
the firm used by the Sponsor).
(c) The Regular Trustees shall cause to be prepared and mailed to
each Holder of Securities an annual United States Federal income tax information
statement, on such form as is required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be prepared and filed with
the appropriate taxing authority an annual United States Federal income tax
return, on such form as is required by the Code, and any other annual income tax
returns required to be filed by the Regular Trustees on behalf of the Trust with
any state or local taxing authority, such returns to be filed as soon as
practicable after the end of each Fiscal Year of the Trust.
SECTION 11.03. Banking. The Regular Trustees shall maintain one or
more bank accounts in the name and for the sole benefit of the Trust; provided,
--------
however, that all payments of funds in respect of the Debentures held by the
- -------
Property Trustee shall be made directly to the Property Account and no other
funds from the Trust shall be deposited in the Property Account. The sole
signatories for such accounts shall be designated by the Regular Trustees;
provided, however, that the Property Trustee shall designate the sole
- -------- -------
signatories for the Property Account.
SECTION 11.04. Withholding. The Trust and the Trustees shall comply
------------
with all withholding requirements under United States Federal, state and local
law. The Trust shall request, and the Holders shall provide to the Trust, such
forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as
shall reasonably be requested by the Trust to assist it in determining the
extent of, and in fulfilling, its withholding obligations.
<PAGE>
43
The Property Trustee shall file required forms with applicable jurisdictions
and, unless an exemption from withholding is properly established by a Holder,
the Property Trustee shall remit amounts withheld with respect to the Holder to
applicable jurisdictions. To the extent that the Trust is required to withhold
and pay over any amounts to any authority with respect to distributions or
allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed overwithholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount to be withheld was not withheld from a
Distribution, the Property Trustee may reduce subsequent Distributions by the
amount of such withholding.
ARTICLE XII
Amendments and Meetings
-----------------------
SECTION 12.01. Amendments. (a) Except as otherwise provided in this
-----------
Declaration or by any applicable terms of the Securities, this Declaration may
be amended by, and only by, a written instrument executed by a majority of the
Regular Trustees (or, if there are only two Regular Trustees, both Regular
Trustees); provided, however, that (i) no amendment to this Declaration shall be
-------- -------
made unless the Regular Trustees shall have obtained (A) either a ruling from
the Internal Revenue Service or a written unqualified opinion of nationally
recognized independent tax counsel experienced in such matters to the effect
that such amendment will not cause the Trust to be classified for United States
Federal income tax purposes as an association taxable as a corporation or a
partnership and to the effect that the Trust will continue to be treated as a
grantor trust for purposes of United States Federal income taxation and (B) a
written unqualified opinion of nationally recognized independent counsel
experienced in such matters to the effect that such amendment will not cause the
Trust to be an Investment Company which is required to be registered under the
Investment Company Act, (ii) if Securities are outstanding, any amendment which
would adversely affect the rights, privileges or preferences of any Holder of
Securities may be effected only after satisfaction of such additional
requirements as may be set forth in the terms of such Securities, (iii) Section
4.02, Section 9.01(c) and this Section 12.01 shall not be amended without the
consent of all Holders of the Securities, (iv) no amendment which adversely
affects the rights, powers and privileges of the Property Trustee or the
Delaware Trustee shall be made without the consent of the Property Trustee or
the Delaware Trustee, as the case may be, (v) Article IV shall not be amended
without the consent of the Sponsor, and (vi) the rights of Holders of Common
<PAGE>
44
Securities under Article V to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent of
each Holder of Common Securities.
(b) Notwithstanding Section 12.02(a)(ii), this Declaration may be
amended without the consent of the Holders of the Securities to (i) cure any
ambiguity, (ii) correct or supplement any provision in this Declaration that may
be defective or inconsistent with any other provision of this Declaration, (iii)
to add to the covenants, restrictions or obligations of the Sponsor, and (iv) to
conform to any changes in Rule 3a-7 or any change in interpretation or
application of Rule 3a-7 by the Commission, which amendment does not adversely
affect the rights, preferences or privileges of the Holders.
(c) The Regular Trustees shall promptly furnish to each of the
Property Trustee and the Delaware Trustee a copy of each amendment to this
Declaration.
SECTION 12.02. Meetings of the Holders of Securities; Action by
------------------------------------------------
Written Consent. (a) Meetings of the Holders of Preferred Securities and/or
- ----------------
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which Holders of such class of Securities are entitled to act under the terms of
this Declaration, the terms of the Securities or the rules of any stock exchange
on which the Preferred Securities are listed or admitted for trading. The
Regular Trustees shall call a meeting of Holders of Preferred Securities or
Common Securities if directed to do so by Holders of at least 10% in liquidation
amount of such class of Securities. Such direction shall be given by delivering
to the Regular Trustees one or more notices in writing stating that the signing
Holders of Securities wish to call a meeting and indicating the general or
specific purpose for which the meeting is to be called. Any Holders of
Securities calling a meeting shall specify in writing the Certificates held by
the Holders of Securities exercising the right to call a meeting and only those
specified Certificates shall be counted for purposes of determining whether the
required percentage set forth in the second sentence of this paragraph has been
met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provision shall apply to meetings of Holders of
Securities:
(i) Notice of any such meeting shall be given by mail to each Trustee
and all the Holders of Securities having a right to vote thereat not less
than seven days nor more than 60 days prior to the date of such meeting.
Whenever a vote, consent or approval of the
<PAGE>
45
Holders of Securities is permitted or required under this Declaration or
the rules of any stock exchange on which the Preferred Securities are
listed or admitted for trading, such vote, consent or approval may be given
at a meeting of the Holders of Securities. Any action that may be taken at
a meeting of the Holders of Securities may be taken without a meeting if a
consent in writing setting forth the action so taken is signed by Holders
of Securities owning not less than the minimum aggregate liquidation amount
of Securities that would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to vote thereon
were present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of Securities entitled to vote who
have not consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Holders of Securities for the purpose of
taking any action without a meeting shall be returned to the Trust within
the time specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act for
it by proxy on all matters in which a Holder of a Security is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration of
11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Security
executing it. Except as otherwise provided herein or in the terms of the
Securities, all matters relating to the giving, voting or validity of
proxies shall be governed by the General Corporation Law of the State of
Delaware relating to proxies and judicial interpretations thereunder as if
the Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate.
(iv) Unless otherwise provided in the Business Trust Act, this
Declaration or the rules of any stock exchange on which the Preferred
Securities are then listed or admitted for trading, the Regular Trustees,
in their sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any Holders
of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements,
<PAGE>
46
voting in person or by proxy or any other matter with respect to the
exercise of any such right to vote.
ARTICLE XIII
Representations of Property Trustee
-----------------------------------
and Delaware Trustee
--------------------
SECTION 13.01. Representations and Warranties of Property Trustee.
---------------------------------------------------
(a) The Trustee which acts as initial Property Trustee represents and warrants
to the Trust and to the Sponsor at the date of this Declaration, and each
Successor Property Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(i) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
State of its incorporation, with trust power and authority to execute and
deliver, and to carry out and perform its obligations under the terms of,
this Declaration.
(ii) The execution, delivery and performance by the Property Trustee
of this Declaration has been duly authorized by all necessary corporate
action on the part of the Property Trustee. The Declaration has been duly
executed and delivered by the Property Trustee, and constitutes a legal,
valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such
remedies is considered in a proceeding in equity or at law).
(iii) The execution, delivery and performance of this Declaration by
the Property Trustee does not conflict with or constitute a breach of the
charter or By-laws of the Property Trustee.
(iv) No consent, approval or authorization of, or registration with
or notice to, any banking authority which supervises or regulates the
Property Trustee is required for the execution, delivery or performance by
the Property Trustee of this Declaration.
(v) The Property Trustee satisfies the qualifications set forth in
Section 5.01(c).
<PAGE>
47
(b) The Trustee which acts as initial Delaware Trustee represents and
warrants to the Trust and the Sponsor at the date of this Declaration, and each
Successor Delaware Trustee represents and warrants to the Trust and the Sponsor
at the time of the Successor Delaware Trustee's acceptance of its appointment as
Delaware Trustee, that it satisfies the qualifications set forth in Section
5.01(a)(3).
ARTICLE XIV
Miscellaneous
-------------
SECTION 14.01. Notices. All notices provided for in this Declaration
--------
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the
Regular Trustees on behalf of the Trust may give notice of to the Property
Trustee, the Delaware Trustee and the Holders of the Securities):
Vintage Petroleum Capital Trust I
In care of Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Attention: S. Craig George
William C. Barnes
Michael F. Meimerstorf
Trustees
Facsimile No: (918) [ ]
(b) if given to the Property Trustee, at the mailing address of the
Property Trustee set forth below (or such other address as the Property
Trustee may give notice of to the Trust and the Holders of the Securities):
The Chase Manhattan Bank
450 West 33/rd/ Street
15/th/ Floor
New York, New York 10001-2697
Attention: Global Trust Services
Facsimile No: (212)
(c) if given to the Delaware Trustee, at the mailing address of the
Delaware Trustee set forth below (or such other address as the Delaware
Trustee may give notice of to the Trust and the Holders of the Securities):
<PAGE>
48
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration
Facsimile No: (302) [ ]
with a copy to:
The Chase Manhattan Bank
450 West 33/rd/ Street
15/th/ Floor
New York, New York 10001-2697
Attention: Global Trust Services
Facsimile No: (212) [ ]
(d) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder
of the Common Securities may give notice to the Property Trustee, the
Delaware Trustee and the Trust):
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Attention: Corporate Secretary
Facsimile No: (918) [ ]
(e) if given to any other Holder, at the address set forth on the
books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware Trustee
shall also be sent to the Trust. All notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or mailed by first
class mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.02. Undertaking for Costs. All parties to this
----------------------
Declaration agree, and each Holder of any Securities by his or her acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Declaration, or in any suit against the Property Trustee for any action taken or
omitted by it as Property Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party
<PAGE>
49
litigant; but the provisions of this Section 14.02 shall not apply to any suit
instituted by the Property Trustee, to any suit instituted by any Holder of
Preferred Securities, or group of Holders of Preferred Securities, holding more
than 10% in aggregate liquidation amount of the outstanding Preferred
Securities, or to any suit instituted by any Holder of Preferred Securities for
the enforcement of the payment of the principal of (or premium, if any) or
interest on the Debentures, on or after the respective due dates expressed in
such Debentures.
SECTION 14.03. Governing Law. This declaration and the rights of the
--------------
Parties hereunder shall be governed by and interpreted in accordance with the
laws of the state of Delaware and all rights and remedies shall be governed by
such laws without regard to the principles of conflict of laws of the state of
Delaware or any other jurisdiction that would call for the application of the
law of any jurisdiction other than the state of Delaware; provided, however,
that there shall not be applicable to the parties hereunder or this declaration
any provision of the laws (statutory or common) of the state of Delaware
pertaining to trusts (other than the Business Trust Act) that relate to or
regulate, in a manner inconsistent with the terms hereof (A) the filing with any
court or governmental body or agency of trustee accounts or schedules of trustee
fees and charges, (B) Affirmative requirements to post bonds for trustees,
officers, agents or employees of a trust, (C) the necessity for obtaining court
or other governmental approval concerning the acquisition, holding or
disposition of real or personal property (D) fees or other sums payable to
trustees, officers, agents or employees of a trust, (E) the allocation of
receipts and expenditures to income or principal, (F) restrictions or
limitations on the permissible nature, amount or concentration of trust
investments or requirements relating to the titling, storage or other manner of
holding or investing trust storage (G) the establishment of fiduciary or other
standards of responsibility or limitations on the acts or powers of trustees
that are inconsistent with the limitations or liabilities or authorities and
powers of the trustees hereunder as set forth or referenced in this declaration.
Section 3540 of title 12 of the Delaware code shall not apply to the trust.
SECTION 14.04. Headings. Headings contained in this Declaration are
---------
inserted for convenience of reference only and do not affect the interpretation
of this Declaration or any provision hereof.
SECTION 14.05. Partial Enforceability. If any provision of this
-----------------------
Declaration, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Declaration, or the
<PAGE>
50
application of such provision to persons or circumstances other than those to
which it is held invalid, shall not be affected thereby.
SECTION 14.06. Counterparts. This Declaration may contain more than
-------------
one counterpart of the signature pages and this Declaration may be executed by
the affixing of the signature of the Sponsor and each of the Trustees to one of
such counterpart signature pages. All of such counterpart signature pages shall
be read as though one, and they shall have the same force and effect as though
all of the signers had signed a single signature page.
SECTION 14.07. Intention of the Parties. It is the intention of the
-------------------------
parties hereto that the Trust not be classified for United States Federal income
tax purposes as an association taxable as a corporation or partnership but that
the Trust be treated as a grantor trust for United States Federal income tax
purposes. The provisions of this Declaration shall be interpreted to further
this intention of the parties.
SECTION 14.08. Successors and Assigns. Whenever in this Declaration
-----------------------
any of the parties hereto is named or referred to, the successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.
<PAGE>
51
IN WITNESS WHEREOF, the undersigned have caused these presents to be
executed as of the day and year first above written.
VINTAGE PETROLEUM, INC., as Sponsor,
by
_________________________
Name:
Title:
REGULAR TRUSTEES:
_________________________
as Regular Trustee
_________________________
as Regular Trustee
[ ], as
Property Trustee,
by
_________________________
Name:
Title:
[ ]
(DELAWARE), as Delaware
Trustee,
by
_________________________
Name:
Title:
<PAGE>
EXHIBIT A
CERTIFICATE OF TRUST OF
VINTAGE PETROLEUM CAPITAL TRUST I
THIS CERTIFICATE OF TRUST OF Vintage Petroleum Capital Trust I (the
"Trust") is being duly executed and filed by the undersigned, as trustees, to
form a business trust under the Delaware Business Trust Act (12 Del. C. Section
3801 et seq.).
1. Name. The name of the business trust formed hereby is Vintage Petroleum
Capital Trust I.
2. Delaware Trustee. The name and business address of the trustee of the
Trust with a principal place of business in the State of Delaware is Chase
Manhattan Bank Delaware, 1201 Market Street, Delaware 19801, Attention:
Corporate Trustee Administration.
3. Effective Date. This Certificate of Trust shall be effective upon its
filing in the office of the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or more
counterparts.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written.
CHASE MANHATTAN BANK DELAWARE,
as Delaware Trustee
By:______________________________
Name: Dennis Kelly
Title: Trust Officer
_________________________________
Name: S. Craig George,
as Trustee
_________________________________
Name: William C. Barnes,
as Trustee
_________________________________
Name: Michael F. Meimerstorf,
as Trustee
<PAGE>
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01 of the Amended and Restated Declaration of
Trust of Vintage Petroleum Capital Trust I dated as of [ ] (as amended
from time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Preferred
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. Preferred Securities of the Trust with an
-----------------------
aggregate liquidation amount in the assets of the Trust of up to [
] Dollars ($[ ]) (including up to [ ] Dollars ($[
]) issuable upon exercise of the overallotment option set forth in the
Underwriting Agreement) and a liquidation amount in the assets of the Trust of
$[ ] per Preferred Security are hereby designated as "[ ]% Preferred Trust
Securities". The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice or to conform to the rules of any stock
exchange on which the Preferred Securities are listed. In connection with the
issuance and sale of the Preferred Securities and the Common Securities, the
Trust will purchase, as trust assets, Debentures of the Sponsor having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities so issued and bearing interest at
an annual rate equal to the annual Distribution rate on the Preferred Securities
and the Common Securities and having payment and redemption provisions which
correspond to the payment and redemption provisions of the Preferred Securities
and the Common Securities.
2. Distributions. (a) Distributions payable on each Preferred
--------------
Security will be payable [at a fixed rate per annum of [ ]%] [floating rate]
(the "Coupon Rate") of the stated liquidation amount of $[ ] per Preferred
Security. Distributions in arrears for more than one month will bear interest at
the Coupon Rate (to the extent permitted by law), compounded monthly. The term
"Distributions" as used in these terms means such periodic cash distributions
and any such interest payable unless otherwise stated. A Distribution will be
made by the Property Trustee only to the extent that interest payments are made
in respect of the Debentures held by the Property Trustee. The amount of
<PAGE>
2
Distributions payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a 30-day period
for which Distributions are computed, Distributions will be computed on the
basis of the actual number of days elapsed.
(b) Distributions on the Preferred Securities will be cumulative,
will accrue from [ ], and will be payable [monthly] [quarterly] [semi-
annually] in arrears, on the first day of each period commencing on [ ],
except as otherwise described below, but only if and to the extent that interest
payments are made in respect of the Debentures held by the Property Trustee. So
long as the Sponsor is not in default in the payment of interest on the
Debentures, the Sponsor shall have the right under the Indenture for the
Debentures to defer payments of interest by extending the interest payment
period from time to time on the Debentures for a period not to exceed [60] [20]
[10] consecutive [monthly] [quarterly] [semi-annually] interest periods (an
"Extension Period"), provided, however, that an Extension Period may not extend
-------- -------
beyond the maturity of the Debentures. During any such Extension Period,
monthly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate, compounded [monthly]
[quarterly] [semi-annually]. Prior to the termination of any such Extension
Period, the Sponsor may further extend such Extension Period; provided that such
--------
Extension Period together with all such previous and further extensions thereof
may not exceed 60 consecutive monthly interest periods. Upon the termination of
any Extension Period and the payment of all amounts then due, the Sponsor may
commence a new Extension Period, subject to the above requirements. Payments of
accrued Distributions will be payable to Holders of Preferred Securities as they
appear on the books and records of the Trust on the record date for the first
interest payment date occurring at or after the end of the Extension Period.
(c) Distributions on the Preferred Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates shall be
one Business Day prior to the relevant Distribution date, and if the Preferred
Securities are no longer in book-entry only form, the relevant record dates will
be the fifteenth (15th) day of the month immediately preceding the month in
which the relevant Distribution date occurs, which record and payment dates
correspond to the record and interest payment dates for the
<PAGE>
3
Debentures. Distributions payable on any Preferred Securities that are not
punctually paid on any Distribution payment date as a result of the Sponsor
having failed to make the corresponding interest payment on the Debentures will
forthwith cease to be payable to the Person in whose name such Preferred
Security is registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Preferred
Security is registered on the special record date established by the Regular
Trustees, which record date shall correspond to the special record date or other
specified date determined in accordance with the Indenture; provided, however,
-------- -------
that Distributions shall not be considered payable on any Distribution payment
date falling within an Extension Period unless the Sponsor has elected to make a
full or partial payment of interest accrued on the Debentures on such
Distribution payment date. Subject to any applicable laws and regulations and
the provisions of the Declaration, each payment in respect of the Preferred
Securities will be made as described in paragraph 9 hereof. If any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(d) All Distributions paid with respect to the Preferred Securities
and the Common Securities will be paid pro rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed pro rata among the Holders of the Preferred
Securities and the Common Securities.
3. Liquidation Distribution upon Dissolution. In the event of any
------------------------------------------
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and the Common Securities at the date of the dissolution will be
entitled to receive pro rata solely out of the assets of the Trust available for
distribution to Holders of Preferred Securities and Common Securities, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business
<PAGE>
4
Trust Act, an amount equal to the aggregate of the stated liquidation amount of
$[ ] per Preferred Security and Common Security plus accrued and unpaid
Distributions thereon to the date of payment (such amount being the "Liquidation
Distribution"), unless, in connection with such dissolution, after paying or
making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, Debentures in an
aggregate principal amount equal to the aggregate stated liquidation amount of
such Preferred Securities and Common Securities, and bearing accrued and unpaid
interest in an amount equal to the accrued and unpaid Distributions on such
Preferred Securities and Common Securities, shall be distributed pro rata to the
Holders of the Preferred Securities and Common Securities in exchange for such
Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Preferred Securities and the Common Securities shall be
paid, subject to the next paragraph, on a pro rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution pro rata with Holders of Preferred
Securities, except that, if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
------------------------------------------
Securities and the Common Securities may only be redeemed if Debentures having
an aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities are repaid, redeemed or
distributed as set forth below:
[(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity or upon redemption at any time or from time to time on or
after [ ], the proceeds of such repayment will be promptly applied to
redeem pro rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid, upon not less than 30 nor more than 60 days notice, at a redemption
price of $[ ] per Preferred Security and Common Security plus an amount equal
to accrued and unpaid Distributions thereon to the date of redemption, payable
in cash (the "Redemption Price"). The date of any such
<PAGE>
5
repayment of Preferred Securities and Common Securities shall be established to
coincide with the repayment date of the Debentures.] [Additional Redemption
provisions to be provided.]
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed pro rata, it being understood that Preferred
Securities held of record by a Clearing Agency or nominee will be redeemed as
described in paragraph 4(f)(ii) below. If a partial redemption would result in
the delisting of the Preferred Securities by any national securities exchange or
other organization on which the Preferred Securities are then listed, the
Sponsor, pursuant to the Indenture, will only redeem Debentures in whole and the
Trust will only redeem the Preferred Securities in whole.
(c) If, at any time, a Tax Event or an Investment Company Event (each
as hereinafter defined, and each a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, dissolve the Trust and, after paying
or making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, cause Debentures held
by the Property Trustee having an aggregate principal amount equal to the
aggregate stated liquidation amount of, and bearing accrued and unpaid interest
equal to accrued and unpaid Distributions on, and having the same record date
for payment as, the Preferred Securities and the Common Securities, to be
distributed to the Holders of the Preferred Securities and the Common Securities
on a pro rata basis in liquidation of such Holders' interests in the Trust,
within 90 days following the occurrence of such Special Event (the "90 Day
Period"); provided, however, that in the case of the occurrence of a Tax Event,
-------- -------
as a condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on any then applicable published revenue rulings of the Internal Revenue
Service, to the effect that the Holders of the Preferred Securities will not
recognize any gain or loss for United States Federal income tax purposes as a
result of the dissolution of the Trust and distribution of Debentures; and
provided further that, if at the time there is available to the Sponsor or the
- ----------------
Regular Trustees, on behalf of the Trust, the opportunity to eliminate, within
the 90 Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other
<PAGE>
6
similar reasonable measure that has no adverse effect on the Trust, the Sponsor
or the Holders of the Preferred Securities (a "Ministerial Action"), the Sponsor
or the Regular Trustees, on behalf of the Trust, will pursue such Ministerial
Action in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that the Sponsor would
be precluded from deducting the interest on the Debentures for United States
Federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of such
Holder's interest in the Trust as described in this paragraph 4(c) or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the Sponsor shall have the
right at any time, upon not less than 30 nor more than 60 days notice, to redeem
the Debentures in whole or in part for cash at the Redemption Price within 90
days following the occurrence of such Tax Event, and, promptly following such
redemption, Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a pro rata
basis; provided, however, that, if at the time there is available to the Sponsor
-------- -------
or the Regular Trustees, on behalf of the Trust, the opportunity to eliminate,
within such 90 day period, the Tax Event by taking some Ministerial Action, the
Sponsor or the Regular Trustees, on behalf of the Trust, will pursue such
measure in lieu of redemption; and provided further that the Sponsor shall have
----------------
no right to redeem the Debentures while the Regular Trustees, on behalf of the
Trust, are pursuing such Ministerial Action. The Common Securities will be
redeemed pro rata with the Preferred Securities, except that if an Event of
Default under the Indenture has occurred and is continuing, the Preferred
Securities will have a priority over the Common Securities with respect to
payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that[, on or after [
],] as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
<PAGE>
7
therein, (b) any amendment to, or change in, an interpretation or application of
any such laws or regulations by any legislative body, court, governmental agency
or regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination), (c) any
interpretation or pronouncement that provides for a position with respect to
such laws or regulations that differs from the theretofore generally accepted
position or (d) any action taken by any governmental agency or regulatory
authority, which amendment or change is enacted, promulgated, issued or
effective or which interpretation or pronouncement is issued or adopted or which
action is taken, in each case after [ ], (collectively, a "Change in Tax Law")
there is more than an insubstantial risk that (i) the Trust is, or will be
within 90 days of the date thereof, subject to United States Federal income tax
with respect to income accrued or received on the [Convertible] Debentures, (ii)
the Trust is, or will be within 90 days of the date thereof, subject to more
than a de minimis amount of other taxes, duties or other governmental charges or
-- -------
(iii) interest payable by the Sponsor to the Trust on the [Convertible]
Debentures is not, or within 90 days of the date thereof will not be, deductible
by the Sponsor for United States Federal income tax purposes (determined without
regard to the use made by the Company of the proceeds of the Convertible
Debentures). Notwithstanding anything in the previous sentence to the contrary,
a Tax Event shall not include any Change in Tax Law that requires the Company
for Federal income tax purposes to defer taking a deduction for any OID that
accrues with respect to the Convertible Debentures until the interest payment
related to such OID is paid by the Company in money; provided that such Change
in Tax Law does not create more than an insubstantial risk that the Company will
be prevented from taking a deduction for OID accruing with respect to the
Convertible Debentures at a date that is no later than the date the interest
payment related to such OID is actually paid by the Company in money.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act that, as a result of the occurrence of
a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an "investment
company" which is required to be registered under the Investment Company Act,
which Change in 1940 Act Law becomes effective on or after [ ].
<PAGE>
8
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Preferred Securities will no longer be deemed to be
outstanding, and (ii) certificates representing Preferred Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Preferred
Securities until such certificates are presented to the Sponsor or its agent for
transfer or reissuance.
(d) The Trust may not redeem fewer than all the outstanding Preferred
Securities unless all accrued and unpaid Distributions have been paid on all
Preferred Securities for all monthly Distribution periods terminating on or
prior to the date of redemption.
(e) If Debentures are distributed to Holders of the Preferred
Securities, the Sponsor, pursuant to the terms of the Indenture, will use its
best efforts to have the Debentures listed on the New York Stock Exchange or on
such other exchange as the Preferred Securities were listed immediately prior to
the distribution of the Debentures.
(f)(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and the Common Securities
(a "Redemption/ Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on which notices
are given pursuant to this paragraph (f)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by first
class mail, postage prepaid, to Holders of Preferred Securities and Common
Securities. Each Redemption/ Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Preferred
Securities are to be redeemed, the Preferred Securities to be redeemed will be
redeemed pro rata from each Holder of Preferred Securities, it being understood
that, in respect of Preferred Securities
<PAGE>
9
registered in the name of and held of record by DTC (or a successor Clearing
Agency) or any other nominee, the Preferred Securities will be redeemed from,
and the distribution of the proceeds of such redemption will be made to, each
Clearing Agency Participant (or person on whose behalf such nominee holds such
securities) in accordance with the procedures applied by such agency or nominee.
(iii) Subject to paragraph 9 hereof, if the Trust gives a
Redemption/Distribution Notice in respect of a redemption of Preferred
Securities as provided in this paragraph 4 (which notice will be irrevocable)
then (A) while the Preferred Securities are in book-entry only form, by 12:00
noon, New York City time, on the redemption date, provided that the Sponsor has
paid the Property Trustee in immediately available funds a sufficient amount of
cash in connection with the related redemption or maturity of the Debentures,
the Property Trustee will deposit irrevocably with DTC (or any successor
Clearing Agency) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give DTC (or any successor Clearing
Agency) irrevocable instructions and authority to pay the Redemption Price to
the Holders of the Preferred Securities and (B) if the Preferred Securities are
issued in definitive form, and provided that the Sponsor has paid the Property
Trustee in immediately available funds a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the Property Trustee
will pay the relevant Redemption Price to the Holders of such Preferred
Securities by check mailed to the address of the relevant Holder appearing on
the books and records of the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given and funds deposited as
required, if applicable, then immediately prior to the close of business on the
redemption date, Distributions will cease to accrue on the Preferred Securities
called for redemption, such Preferred Securities will no longer be deemed to be
outstanding and all rights of Holders of such Preferred Securities so called for
redemption will cease, except the right of the Holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price. Neither the Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Preferred Securities
which have been so called for redemption. If any date fixed for redemption of
Preferred Securities is not a Business Day, then payment of the Redemption Price
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay)
except that, if such Business Day falls in the next calendar
<PAGE>
10
year, such payment will be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date fixed for
redemption. If the Sponsor fails to repay Debentures on maturity or on the date
fixed for redemption or if payment of the Redemption Price in respect of
Preferred Securities is improperly withheld or refused and not paid either by
the Property Trustee or, pursuant to the Preferred Securities Guarantee, by the
Sponsor, Distributions on such Preferred Securities will continue to accrue,
from the original redemption date to the date of payment, in which case the
actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to DTC or its nominee (or any successor Clearing
Agency or its nominee) if the Global Certificates have been issued or, if
Definitive Preferred Security Certificates have been issued, to the Holders of
the Preferred Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Preferred Security
Certificates shall be deemed to represent beneficial interests in the Debentures
so distributed, and the Preferred Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities so distributed.
(vi) If a partial redemption of the Preferred Securities would result
in the delisting of the Preferred Securities by any national securities exchange
or other organization on which the Preferred Securities are then listed, the
Company pursuant to the Indenture will only redeem Debentures in whole and, as a
result, the Trust would only redeem the Preferred Securities in whole.
(vii) Subject to the foregoing and applicable law (including, without
limitation, United States Federal and state securities laws), the Sponsor or any
of its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
5. Voting Rights. (a) Except as provided under paragraph 5(b) below
--------------
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
<PAGE>
11
(b) If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of Debentures held by the Property Trustee, upon the
occurrence of a Special Event or in connection with the redemption of Preferred
Securities as a consequence of a redemption of Debentures, then the Holders of
outstanding Securities will be entitled to vote on such amendment or proposal as
a class and such amendment or proposal shall not be effective except with the
approval of the Holders of Securities representing 66-2/3% in liquidation amount
of such Securities; provided, however, that (A) if any amendment or proposal
-------- -------
referred to in clause (i) above would adversely affect only the Preferred
Securities or the Common Securities, then only the affected class will be
entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of 66-2/3% in liquidation amount
of such class of Securities and (B) amendments to the Declaration shall be
subject to such further requirements as are set forth in Sections 12.01 and
12.02 of the Declaration.
In the event the consent of the Property Trustee, as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
--------
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures affected
thereby, the Property Trustee may only vote with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above, the
vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities affected thereby; and provided further that the
----------------
Property Trustee shall be under no obligation to take any action in accordance
with the directions of the Holders of Securities unless the Property Trustee
shall have received, at the
<PAGE>
12
expense of the Sponsor, an opinion of nationally recognized independent tax
counsel recognized as expert in such matters to the effect that the Trust will
not be classified for United States Federal income tax purposes as an
association taxable as a corporation or a partnership on account of such action
and will be treated as a grantor trust for United States Federal income tax
purposes following such action.
Subject to Section 2.06 of the Declaration, and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Preferred Securities, voting separately as a class, shall have the
right to (A) on behalf of all Holders of Preferred Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with, the Declaration) and (B) direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under the Declaration,
including the right to direct the Property Trustee, as the holder of the
Debentures, to (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.06 of
the Indenture, or (iii) exercise any right to rescind or annul a declaration
that the principal of all the Debentures shall be due and payable; provided that
--------
where the taking of any action under the Indenture requires the consent or vote
of (1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of Debentures
affected thereby, the Property Trustee may only take such action if directed by,
in the case of clause (1) above, the vote of Holders of Preferred Securities
representing such specified percentage of the aggregate liquidation amount of
the Preferred Securities, or, in the case of clause (2) above, each Holder of
Preferred Securities affected thereby. The Property Trustee shall not revoke
any action previously authorized or approved by a vote of the Holders of the
Preferred Securities. Other than with respect to directing the time, method and
place of conducting any proceeding for any remedy available to the Property
Trustee or the Debenture Trustee as set forth above, the Property Trustee shall
be under no obligation to take any of the foregoing actions at the direction of
the Holders of Preferred Securities unless the Property Trustee shall have
received, at the expense of the Sponsor, an opinion of nationally recognized
independent tax counsel recognized as expert in such matters to the effect that
the Trust will not be classified for United States Federal
<PAGE>
13
income tax purposes as an association taxable as a corporation or a partnership
on account of such action and will be treated as a grantor trust for United
States Federal income tax purposes following such action. If the Property
Trustee fails to enforce its rights under the Declaration (including, without
limitation, its rights, powers and privileges as a holder of the Debentures
under the Indenture), any Holder of Preferred Securities may, to the extent
permitted by law, after a period of 30 days has elapsed from such Holder's
written request to the Property Trustee to enforce such rights, institute a
legal proceeding directed against the Sponsor to enforce the Property Trustee's
rights under the Declaration, without first instituting a legal proceeding
against the Property Trustee or any other Person. Notwithstanding the foregoing,
if an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Sponsor to pay interest or principal on the
Debentures on the date such interest or principal is otherwise payable (or in
the case of redemption, the redemption date), then a Holder of Preferred
Securities may directly institute suit against the Sponsor for enforcement of
payment to such Holder of the principal of or interest on Debentures having a
principal amount equal to the aggregate liquidation amount of the Preferred
Securities held by such Holder on or after the respective due date specified in
the Debentures. The Holders of Preferred Securities will not be able to exercise
directly against the Sponsor any other remedy available to the Holders of the
Debentures unless the Property Trustee first fails to do so.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities of the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Preferred Securities. Each such notice
will include a statement setting forth (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any resolution
proposed for adoption at such meeting on which such Holders are entitled to vote
or of such matter upon
<PAGE>
14
which written consent is sought and (iii) instructions for the delivery of
proxies or consents.
No vote or consent of the Holders of Preferred Securities will be
required for the Trust to redeem and cancel Preferred Securities in accordance
with the Declaration.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any of the
Preferred Securities at such time that are owned by the Sponsor or by any entity
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Sponsor shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
Holders of the Preferred Securities will have no rights to increase or
decrease the number of Trustees or to appoint, remove or replace a Trustee,
which voting rights are vested exclusively in the Holders of the Common
Securities.
[6. Conversion Rights. To be provided if applicable.]
------------------
7. Pro Rata Treatment. A reference in these terms of the Preferred
-------------------
Securities to any payment, distribution or treatment as being "pro rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. Ranking. The Preferred Securities rank pari passu and payment
--------
thereon will be made pro rata with the Common Securities except that where an
Event of Default occurs and is continuing, the rights of Holders of Preferred
<PAGE>
15
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise rank in priority to the rights of Holders of the Common
Securities.
9. Mergers, Consolidations or Amalgamations. The Trust may not
-----------------------------------------
consolidate, amalgamate, merge with or into, or be replaced by, or sell,
transfer or lease all or substantially all its properties and assets to, any
Person.
10. Transfer, Exchange, Method of Payments. Payment of Distributions
---------------------------------------
and payments on redemption of the Preferred Securities will be payable, the
transfer of the Preferred Securities will be registrable, and Preferred
Securities will be exchangeable for Preferred Securities of other denominations
of a like aggregate liquidation amount, at the principal corporate trust office
of the Property Trustee in The City of New York; provided that payment of
--------
Distributions may be made at the option of the Regular Trustees on behalf of the
Trust by check mailed to the address of the Persons entitled thereto and that
the payment on redemption of any Preferred Security will be made only upon
surrender of such Preferred Security to the Property Trustee.
11. Acceptance of Indenture and Preferred Guarantee. Each Holder of
------------------------------------------------
Preferred Securities, by the acceptance thereof, agrees to the provisions of (i)
the Preferred Guarantee, including the subordination provisions thereof and (ii)
the Junior Subordinated Indenture and the Debentures, including the
subordination provisions of the Indenture.
12. No Preemptive Rights. The Holders of Preferred Securities shall
---------------------
have no preemptive rights to subscribe to any additional Preferred Securities or
Common Securities.
13. Miscellaneous. These terms shall constitute a part of the
--------------
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
<PAGE>
ANNEX I
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--THIS
PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE DECLARATION
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS EXCHANGEABLE
FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE DECLARATION AND
NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS PREFERRED
SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR
ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TO THE TRUST OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITY ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC OR ANY SUCCESSOR DEPOSITARY AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC OR ANY SUCCESSOR DEPOSITARY, ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL, SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Preferred Securities:
Number:
CUSIP NO.:
<PAGE>
2
Certificate Evidencing Preferred Securities
-------------------------------------------
of
--
Vintage Petroleum Capital Trust I
---------------------------------
% Preferred Trust Securities
-------------------------------
(liquidation amount $[ ] per Preferred Security)
-------------------------------------------------
Vintage Petroleum Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that [
] (the "Holder") is the registered owner of [ ] preferred securities of
the Trust representing undivided beneficial interests in the assets of the Trust
designated the [ ]% Preferred Trust Securities (liquidation amount $[ ] per
Preferred Security) (the "Preferred Securities"). The transfer of Preferred
Securities is registrable on the books and records of the Trust, in person or by
a duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for registration of transfer. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of [ ], as the same may be amended from time to time
(the "Declaration"), including the designation of the terms of Preferred
Securities as set forth in Exhibit B thereto. The Preferred Securities and the
Common Securities issued by the Trust pursuant to the Declaration represent
undivided beneficial interests in the assets of the Trust, including the
Debentures (as defined in the Declaration) issued by Vintage Petroleum, Inc., a
Delaware corporation (the "Sponsor"), to the Trust pursuant to the Indenture
referred to in the Declaration. The Holder is entitled to the benefits of the
Guarantee Agreement of the Sponsor dated as of [ ] (the "Guarantee"), to
the extent provided therein. The Trust will furnish a copy of the Declaration,
the Guarantee and the Indenture to the Holder without charge, upon written
request to the Trust, at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Indebtedness (as defined in the Indenture) as and
<PAGE>
3
to the extent provided in the Indenture and (ii) agreed to the terms of the
Guarantee, including that the Guarantee is subordinate and junior in right of
payment to all other indebtedness, liabilities and obligations of the Sponsor,
including the Debentures, except those made pari passu or subordinate by their
---- -----
terms, and senior to all capital stock now or hereafter issued by the Sponsor
and to any guarantee now or hereafter entered into by the Sponsor in respect of
any of its capital stock.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this day of .
Vintage Petroleum Capital
Trust I
by
______________________________
Name:
Title: Regular Trustee
by
______________________________
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
[ ], as
Transfer Agent and Registrar
by __________________________
Authorized Officer
<PAGE>
4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_______________________________________________________________________________
_______________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: ________________________
Signature: ___________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01 of the Amended and Restated Declaration of
Trust of Vintage Petroleum Capital Trust I dated as of [ ] (as amended
from time to time, the "Declaration"), the designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth below (each capitalized term used but not defined
herein having the meaning set forth in the Declaration):
1. Designation and Number. Common Securities of the Trust with an
-----------------------
aggregate liquidation amount in the assets of the Trust of up to [ ]
Dollars ($[ ]) (including up to [ ] Dollars ($[ ])
issuable upon exercise of the overallotment option set forth in the Underwriting
Agreement) and a liquidation amount in the assets of the Trust of $[ ] per
Common Security are hereby designated as "[ ]% Common Trust Securities". The
Common Security Certificates evidencing the Common Securities shall be
substantially in the form attached hereto as Annex I, with such changes and
additions thereto or deletions therefrom as may be required by ordinary usage,
custom or practice. The Common Securities are to be issued and sold to Vintage
Petroleum, Inc. ("the Sponsor"). In connection with the issuance and sale of
the Preferred Securities and the Common Securities, the Trust will purchase, as
trust assets, Debentures of The Sponsor having an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Securities and the
Common Securities so issued, and bearing interest at an annual rate equal to the
annual Distribution rate on the Preferred Securities and the Common Securities
and having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. Distributions. (a) Distributions payable on each Common Security
--------------
will be payable at a [fixed rate per annum of [ ]%] [floating rate] (the
"Coupon Rate") of the stated liquidation amount of $[ ] per Common Security.
Distributions in arrears for more than one month will bear interest at the
Coupon Rate (to the extent permitted by applicable law), compounded monthly.
The term "Distributions" as used in these terms means such periodic cash
distributions and any such interest payable unless otherwise stated. A
Distribution will be made by the Property Trustee only to the extent that
interest payments are made in respect of the Debentures held by the Property
<PAGE>
2
Trustee. The amount of Distributions payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months, and for any Distribution
period shorter than a 30-day period for which Distributions are computed,
Distributions will be computed on the basis of the actual number of days
elapsed.
(b) Distributions on the Common Securities will be cumulative, will
accrue from [ ], and will be payable [monthly] [quarterly] [semi-
annually] in arrears, on the first day of each period, commencing on [
], except as otherwise described below, but only if and to the extent that
interest payments are made in respect of the Debentures held by the Property
Trustee. So long as The Sponsor is not in default in the payment of interest on
the Debentures, The Sponsor shall have the right under the Indenture for the
Debentures to defer payments of interest by extending the interest payment
period from time to time on the Debentures for a period not to exceed [60] [20]
[10] consecutive [monthly] [quarterly] [semi-annual] interest periods (each, an
"Extension Period"), provided, however, that an Extension Period may not extend
-------- -------
beyond the maturity of the Debentures. During any such Extension Period,
[monthly] [quarterly] [semi-annually] Distributions will continue to accrue with
interest thereon (to the extent permitted by applicable law) at the Coupon Rate,
compounded [monthly] [quarterly] [semi-annually]. Prior to the termination of
any such Extension Period, The Sponsor may further extend such Extension Period;
provided that such Extension Period, together with all such previous and further
- --------
extensions thereof, may not exceed [60] [20] [10] consecutive monthly interest
periods. Upon the termination of any Extension Period and the payment of all
amounts then due, The Sponsor may commence a new Extension Period, subject to
the above requirements. Payments of accrued Distributions will be payable to
Holders of Common Securities as they appear on the books and records of the
Trust on the record date for the first interest payment date occurring at or
after the end of the Extension Period.
(c) Distributions on the Common Securities will be payable promptly
by the Property Trustee (or other Paying Agent) upon receipt of immediately
available funds to the Holders thereof as they appear on the books and records
of the Trust on the relevant record dates which will be one Business Day prior
to the relevant Distribution date unless the Preferred Securities are no longer
in book-entry only form, in which event the relevant record dates will be the
fifteenth (15th) day of the month immediately preceding the month in which the
relevant Distribution date occurs, which record and payment dates correspond to
the record and
<PAGE>
3
interest payment dates for the Debentures. Distributions payable on any Common
Securities that are not punctually paid on any Distribution date as a result of
The Sponsor having failed to make the corresponding interest payment on the
Debentures will forthwith cease to be payable to the Person in whose name such
Common Security is registered on the relevant record date, and such defaulted
Distribution will instead be payable to the Person in whose name such Common
Security is registered on the special record date established by the Regular
Trustees, which record date shall correspond to the special record date or other
specified date determined in accordance with the Indenture; provided, however,
-------- -------
that Distributions shall not be considered payable on any Distribution payment
date falling within an Extension Period unless The Sponsor has elected to make a
full or partial payment of interest accrued on the Debentures on such
Distribution payment date. Subject to any applicable laws and regulations and
the provisions of the Declaration, each payment in respect of the Common
Securities will be made as described in paragraph 9 hereof. If any date on
which Distributions are payable on the Common Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date.
(d) All Distributions paid with respect to the Common Securities and
the Preferred Securities will be paid pro rata to the Holders thereof entitled
thereto. If an Event of Default has occurred and is continuing, the Preferred
Securities shall have a priority over the Common Securities with respect to
Distributions.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for under the Declaration, such money or
property shall be distributed pro rata among the Holders of the Preferred
Securities and the Common Securities.
3. Liquidation Distribution Upon Dissolution. In the event of any
------------------------------------------
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and Common Securities at the date of the dissolution will be entitled
to receive pro rata solely out of the assets of the Trust available for
distribution to Holders of Preferred Securities and the Common Securities, after
paying or making reasonable provision to pay all claims and obligations of the
Trust in accordance with Section 3808(e) of the Business
<PAGE>
4
Trust Act, after satisfaction of liabilities to creditors, an amount equal to
the aggregate of the stated liquidation amount of $[ ] per Preferred Security
and Common Security plus accrued and unpaid Distributions thereon to the date of
payment (such amount being the "Liquidation Distribution"), unless, in
connection with such dissolution, after paying or making reasonable provision to
pay all claims and obligations of the Trust in accordance with Section 3808(e)
of the Business Trust Act, Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of such Preferred Securities and Common
Securities, and bearing accrued and unpaid interest in an amount equal to the
accrued and unpaid Distributions on such Preferred Securities and Common
Securities, shall be distributed pro rata to the Holders of the Preferred
Securities and Common Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Preferred Securities and the Common Securities shall be
paid, subject to the next paragraph, on a pro rata basis.
Holders of Common Securities will be entitled to receive Liquidation
Distributions upon any such dissolution pro rata with Holders of Preferred
Securities, except that, if an Event of Default has occurred and is continuing,
the Preferred Securities shall have a priority over the Common Securities with
respect to such Liquidation Distribution.
4. Redemption and Distribution of Debentures. The Preferred
------------------------------------------
Securities and the Common Securities may only be redeemed if Debentures having
an aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities are repaid, redeemed or
distributed as set forth below:
[(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity or upon redemption at any time or from time to time on or
after [ ], the proceeds of such repayment will be promptly applied to
redeem pro rata Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
repaid, upon not less than 30 nor more than 60 days notice, at a redemption
price of $[ ] per Preferred Security and Common Security plus an amount equal
to accrued and unpaid Distributions thereon to the date of redemption, payable
in cash (the "Redemption Price"). The date of any such
<PAGE>
5
repayment of Preferred Securities and Common Securities shall be established to
coincide with the repayment or redemption date of the Debentures.] [Other
applicable redemption provisions, if any.]
(b) If fewer than all the outstanding Preferred Securities and Common
Securities are to be so redeemed, the Preferred Securities and the Common
Securities will be redeemed pro rata and, with respect to the Common Securities
to be redeemed, as described in paragraph 4(e)(ii) below. If a partial
redemption would result in the delisting of the Preferred Securities by any
national securities exchange or other organization on which the Preferred
Securities are then listed, The Sponsor, pursuant to the Indenture, will only
redeem Debentures in whole and the Trust will only redeem the Common Securities
in whole.
(c) If, at any time, a Tax Event or an Investment Company Event
(each, as hereinafter defined and, each, a "Special Event") shall occur and be
continuing, the Regular Trustees shall, unless the Debentures are redeemed in
the limited circumstances described below, dissolve the Trust and, after paying
or making reasonable provision to pay all claims and obligations of the Trust in
accordance with Section 3808(e) of the Business Trust Act, cause Debentures held
by the Property Trustee having an aggregate principal amount equal to the
aggregate stated liquidation amount of, and bearing accrued and unpaid interest
equal to accrued and unpaid Distributions on, and having the same record date
for payment as, the Preferred Securities and the Common Securities, to be
distributed to the Holders of the Preferred Securities and the Common Securities
on a pro rata basis in liquidation of such Holders' interests in the Trust,
within 90 days following the occurrence of such Special Event (the "90 Day
Period"); provided, however, that in the case of the occurrence of a Tax Event,
-------- -------
as a condition of such dissolution and distribution, the Regular Trustees shall
have received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "No Recognition Opinion"), which opinion may rely
on any then applicable published revenue rulings of the Internal Revenue
Service, to the effect that the Holders of the Preferred Securities will not
recognize any gain or loss for United States Federal income tax purposes as a
result of the dissolution of the Trust and distribution of Debentures; and
provided further that, if at the time there is available to The Sponsor or the
- ----------------
Regular Trustees, on behalf of the Trust, the opportunity to eliminate, within
such 90 Day Period, the Special Event by taking some ministerial action, such as
filing a form or making an election, or pursuing some other similar reasonable
measure that has no adverse effect on the
<PAGE>
6
Trust, The Sponsor or the Holders of the Preferred Securities (a "Ministerial
Action"), The Sponsor or the Regular Trustees, on behalf of the Trust, will
pursue such Ministerial Action in lieu of dissolution.
If in the case of the occurrence of a Tax Event, (i) the Regular
Trustees have received an opinion (a "Redemption Tax Opinion") of nationally
recognized independent tax counsel experienced in such matters that, as a result
of a Tax Event, there is more than an insubstantial risk that The Sponsor would
be precluded from deducting the interest on the Debentures for United States
Federal income tax purposes even if the Debentures were distributed to the
Holders of Preferred Securities and Common Securities in liquidation of such
Holders' interest in the Trust as described in this paragraph 4(c) or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, The Sponsor shall have the
right at any time, upon not less than 30 nor more than 60 days notice, to redeem
the Debentures in whole or in part for cash at the Redemption Price within 90
days following the occurrence of such Tax Event, and, promptly following such
redemption, Preferred Securities and Common Securities with an aggregate
liquidation amount equal to the aggregate principal amount of the Debentures so
redeemed will be redeemed by the Trust at the Redemption Price on a pro rata
basis; provided, however, that, if at the time there is available to The Sponsor
-------- -------
or the Regular Trustees on behalf of the Trust, the opportunity to eliminate,
within such 90 Day Period, the Tax Event by taking some Ministerial Action, The
Sponsor or the Holders of the Preferred Securities, The Sponsor or the Regular
Trustees, on behalf of the Trust, will pursue such measure in lieu of
redemption; and provided further, that The Sponsor shall have no right to redeem
----------------
the Debentures while the Regular Trustees, on behalf of the Trust, are pursuing
such Ministerial Action. The Common Securities will be redeemed pro rata with
the Preferred Securities, except that if an Event of Default under the Indenture
has occurred and is continuing, the Preferred Securities will have a priority
over the Common Securities with respect to payment of the Redemption Price.
"Tax Event" means that the Regular Trustees shall have obtained an
opinion of nationally recognized independent tax counsel experienced in such
matters (a "Dissolution Tax Opinion") to the effect that, on or after [
], as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
<PAGE>
7
therein, (b) any amendment to, or change (including any announced prospective
change) in, an interpretation or application of any such laws or regulations by
any legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of any judicial
decision or regulatory determination), (c) any interpretation or pronouncement
that provides for a position with respect to such laws or regulations that
differs from the theretofore generally accepted position or (d) any action taken
by any governmental agency or regulatory authority, which amendment or change is
enacted, promulgated, issued or effective or which interpretation or
pronouncement is issued or announced or which action is taken, in each case on
or after [ ], there is more than an insubstantial risk that (i) the
Trust is, or will be within 90 days of the date thereof, subject to United
States Federal income tax with respect to income accrued or received on the
Debentures, (ii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties or other governmental
-- -------
charges or (iii) interest payable by The Sponsor to the Trust on the Debentures
is not, or within 90 days of the date thereof will not be, deductible by The
Sponsor for United States Federal income tax purposes.
"Investment Company Event" means that the Regular Trustees shall have
received an opinion of nationally recognized independent counsel experienced in
practice under the Investment Company Act that, as a result of the occurrence of
a change in law or regulation or a change in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in 1940 Act Law"), there is more than an
insubstantial risk that the Trust is or will be considered an Investment Company
which is required to be registered under the Investment Company Act, which
Change in 1940 Act Law becomes effective on or after [ ].
On the date fixed for any distribution of Debentures, upon dissolution
of the Trust, (i) the Common Securities will no longer be deemed to be
outstanding and (ii) any certificates representing Common Securities will be
deemed to represent beneficial interests in the Debentures having an aggregate
principal amount equal to the stated liquidation amount of, and bearing accrued
and unpaid interest equal to accrued and unpaid Distributions on, such Common
Securities until such certificates are presented to The Sponsor or its agent for
transfer or reissuance.
<PAGE>
8
(d) The Trust may not redeem fewer than all the outstanding Common
Securities unless all accrued and unpaid Distributions have been paid on all
Common Securities for all monthly Distribution periods terminating on or prior
to the date of redemption.
(e)(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for, the Preferred Securities and the Common Securities
(a "Redemption/ Distribution Notice") will be given by the Regular Trustees on
behalf of the Trust by mail to each Holder of Preferred Securities and Common
Securities to be redeemed or exchanged not less than 30 nor more than 60 days
prior to the date fixed for redemption or exchange thereof. For purposes of
the calculation of the date of redemption or exchange and the dates on which
notices are given pursuant to this paragraph (e)(i), a Redemption/Distribution
Notice shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities and Common
Securities. Each Redemption/ Distribution Notice shall be addressed to the
Holders of Preferred Securities and Common Securities at the address of each
such Holder appearing in the books and records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of either thereof with respect
to any Holder shall affect the validity of the redemption or exchange
proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed will be
redeemed pro rata from each Holder of Common Securities (subject to adjustment
to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in respect
of a redemption of Common Securities as provided in this paragraph 4 (which
notice will be irrevocable), then immediately prior to the close of business on
the redemption date, provided that The Sponsor has paid to the Property Trustee
in immediately available funds a sufficient amount of cash in connection with
the related redemption or maturity of the Debentures, Distributions will cease
to accrue on the Common Securities called for redemption, such Common Securities
will no longer be deemed to be outstanding and all rights of Holders of such
Common Securities so called for redemption will cease, except the right of the
Holders of such Common Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any Common
Securities which have been so called
<PAGE>
9
for redemption. If any date fixed for redemption of Common Securities is not a
Business Day, then payment of the Redemption Price payable on such date will be
made on the next succeeding day that is a Business Day (and without any interest
or other payment in respect of any such delay), except that, if such Business
Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on such date fixed for redemption. If payment of the Redemption Price
in respect of Common Securities is improperly withheld or refused and not paid
by the Property Trustee, Distributions on such Common Securities will continue
to accrue, from the original redemption date to the date of payment, in which
case the actual payment date will be considered the date fixed for redemption
for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to the Holders of the Common Securities.
(v) Upon the date of dissolution of the Trust and distribution of
Debentures as a result of the occurrence of a Special Event, Common Security
Certificates shall be deemed to represent beneficial interests in the Debentures
so distributed, and the Common Securities will no longer be deemed
outstanding and may be canceled by the Regular Trustees. The Debentures so
distributed shall have an aggregate principal amount equal to the aggregate
liquidation amount of the Common Securities so distributed.
5. Voting Rights. (a) Except as provided under paragraph 5(b) below
--------------
and as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or the
Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the powers, preferences or special rights of the Securities,
whether by way of amendment to the Declaration or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than in connection
with the distribution of
<PAGE>
10
Debentures held by the Property Trustee, upon the occurrence of a Special Event
or in connection with the redemption of Common Securities as a consequence of a
redemption of Debentures, then the Holders of outstanding Securities will be
entitled to vote on such amendment or proposal as a class and such amendment or
proposal shall not be effective except with the approval of the Holders of
Securities representing 66-2/3% in liquidation amount of such Securities;
provided, however, that (A) if any amendment or proposal referred to in clause
- -------- -------
(i) above would adversely affect only the Preferred Securities or the Common
Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of 66-2/3% in liquidation amount of such class of
Securities, (B) the rights of Holders of Common Securities under Article V of
the Declaration to increase or decrease the number of, and to appoint, replace
or remove, Trustees shall not be amended without the consent of each Holder of
Common Securities, and (C) amendments to the Declaration shall be subject to
such further requirements as are set forth in Sections 12.01 and 12.02 of the
Declaration.
In the event the consent of the Property Trustee as the holder of the
Debentures, is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the written direction of the Holders of the Securities
with respect to such amendment, modification or termination. The Property
Trustee shall vote with respect to such amendment, modification or termination
as directed by a Majority in liquidation amount of the Securities voting
together as a single class; provided that where such amendment, modification or
--------
termination of the Indenture requires the consent or vote of (1) holders of
Debentures representing a specified percentage greater than a majority in
principal amount of the Debentures or (2) each holder of Debentures affected
thereby, the Property Trustee may vote only with respect to that amendment,
modification or termination as directed by, in the case of clause (1) above, the
vote of Holders of Securities representing such specified percentage of the
aggregate liquidation amount of the Securities, or, in the case of clause (2)
above, each Holder of Securities affected thereby; and provided, further, that
-------- -------
the Property Trustee shall be under no obligation to take any action in
accordance with the directions of the Holders of the Securities unless the
Property Trustee shall have received, at the expense of the Sponsor, an opinion
of nationally recognized independent tax counsel recognized as an expert in such
matters to the effect that the Trust will not be
<PAGE>
11
classified for United States Federal income tax purposes as an association
taxable as a corporation or a partnership on account of such action and will be
treated as a grantor trust for United States Federal income tax purposes
following such action.
Subject to Section 2.06 of the Declaration and the provisions of this
and the next succeeding paragraph, the Holders of a Majority in liquidation
amount of the Common Securities, voting separately as a class, shall have the
right to (A) on behalf of all Holders of Common Securities, waive any past
default that is waivable under the Declaration (subject to, and in accordance
with, the Declaration) and (B) direct the time, method and place of conducting
any proceeding for any remedy available to the Property Trustee, or exercising
any trust or power conferred upon the Property Trustee under the Declaration,
including the right to direct the Property Trustee, as holder of the Debentures,
to (i) direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures, (ii) waive
any past default and its consequences that is waivable under Section 6.06 of the
Indenture, or (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable; provided that
--------
where the taking of any action under the Indenture requires the consent or vote
of (1) holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (e) each holder of Debentures
affected thereby, the Property Trustee may take such action only if directed by,
in the case of clause (1) above, the vote of Holders of Common Securities
representing such specified percentage of the aggregate liquidation amount of
the Common Securities, or, in the case of clause (2) above, each Holder of
Common Securities affected thereby. Pursuant to this paragraph, the Property
Trustee shall not revoke, or take any action inconsistent with, any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities, and shall not take any action in accordance with the direction of
the Holders of the Common Securities under this paragraph if the action is
prejudicial to the Holders of Preferred Securities. Other than with respect to
directing the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or the Debenture Trustee as set forth above,
the Property Trustee shall be under no obligation to take any of the foregoing
actions at the direction of the Holders of Common Securities unless the Property
Trustee shall have received, at the expense of the Sponsor, an opinion of
nationally recognized independent tax
<PAGE>
11
counsel recognized as expert in such matters to the effect that the Trust will
not be classified for United States Federal income tax purposes as an
association taxable as a corporation or a partnership on account of such action
and will be treated as a grantor trust for United States income tax purposes
following such action.
Notwithstanding any other provision of these terms, each Holder of
Common Securities will be deemed to have waived any Event of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Declaration or of the Securities. In the event
that any Event of Default with respect to the Preferred Securities is waived by
the Holders of Preferred Securities as provided in the Declaration, the Holders
of Common Securities agree that such waiver shall also constitute the waiver of
such Event of Default with respect to the Common Securities for all purposes
under the Declaration without any further act, vote or consent of the Holders of
the Common Securities.
A waiver of an Indenture Event of Default by the Property Trustee at
the direction of the Holders of the Preferred Securities will constitute a
waiver of the corresponding Event of Default under the Declaration in respect of
the Securities.
Any required approval of Holders of Common Securities may be given at
a separate meeting of Holders of Common Securities convened for such purpose, at
a meeting of all of the Holders of Securities of the Trust or pursuant to
written consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Common Securities are entitled to vote, or of any matter upon
which action by written consent of such Holders is to be taken, to be mailed to
each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is
<PAGE>
13
sought and (iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities in accordance with
the Declaration.
6. Conversion Rights. [to be provided if applicable.]
------------------
7. Pro Rata Treatment. A reference in these terms of the Common
-------------------
Securities to any payment, distribution or treatment as being "pro rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. Ranking. The Common Securities rank pari passu and payment
-------- ---- -----
thereon will be made pro rata with the Preferred Securities except that where an
Event of Default occurs and is continuing, the rights of Holders of Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise are subordinate to the rights of Holders of the
Preferred Securities.
9. Mergers, Consolidations or Amalgamations. The Trust may not
-----------------------------------------
consolidate, amalgamate, merge with or into, or be replaced by, or sell,
transfer or lease all or substantially all its properties and assets to, any
Person.
10. Transfers, Exchanges, Method Payments. Payment of Distributions
--------------------------------------
and payments on redemption of the Common Securities will be payable, the
transfer of the Common Securities will be registrable, and Common Securities
will be exchangeable for Common Securities of other denominations of a like
aggregate liquidation amount, at the principal corporate trust office of the
Property Trustee in
<PAGE>
14
The City of New York; provided that payment of Distributions may be made at the
--------
option of the Regular Trustees on behalf of the Trust by check mailed to the
address of the Persons entitled thereto and that the payment on redemption of
any Common Security will be made only upon surrender of such Common Security to
the Property Trustee. Notwithstanding the foregoing, transfers of Common
Securities are subject to conditions set forth in Section 9.01(c) of the
Declaration.
11. Acceptance of Indenture. Each Holder of Common Securities, by
------------------------
the acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions thereof.
12. No Preemptive Rights. The Holders of Common Securities shall
---------------------
have no preemptive rights to subscribe to any additional Common Securities or
Preferred Securities.
13. Miscellaneous. These terms shall constitute a part of the
--------------
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder without charge on written request to the Trust at its principal
place of business.
<PAGE>
Annex I
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Number: Common Securities:
Certificate Evidencing Common Securities
----------------------------------------
of
--
Vintage Petroleum Capital Trust I
---------------------------------
[ ]% Common Trust Securities
------------------------------
(liquidation amount $[ ] per Common Security)
----------------------------------------------
Vintage Petroleum Capital Trust I, a business trust formed under the
laws of the State of Delaware (the "Trust"), hereby certifies that Vintage
Petroleum, Inc. (the "Holder") is the registered owner of
common securities of the Trust representing undivided beneficial interests in
the assets of the Trust designated the "[ ]% Common Trust Securities"
(liquidation amount $[ ] per Common Security) (the "Common Securities"). The
transfer of Common Securities is registrable on the books and records of the
Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for registration of transfer and
satisfaction of the other conditions set forth in the Declaration (as defined
below) including, without limitation, Section 9.01(c) thereof. The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of, the Amended and Restated Declaration of
Trust of the Trust dated as of [ ], [ ], as the same may be amended
from time to time (the "Declaration"), including the designation of the terms of
Common Securities as set forth in Exhibit C thereto. The Common Securities and
the Preferred Securities issued by the Trust pursuant to the Declaration
represent undivided beneficial interests in the assets of the Trust, including
the Debentures (as defined in the Declaration) issued by Vintage Petroleum,
Inc., a Delaware corporation, to the Trust pursuant to the Indenture
<PAGE>
2
referred to in the Declaration. The Trust will furnish a copy of the Declaration
and the Indenture to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
The Holder of this Certificate, by accepting this Certificate, is
deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Indebtedness (as defined in the Indenture) as and to the extent
provided in the Indenture.
<PAGE>
3
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Trustees of the Trust have executed this
certificate this day of .
Vintage Petroleum Capital
Trust I,
by_________________________
Name:
Title: Regular Trustee
by_________________________
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
[ ], as
Transfer Agent and Registrar
by_____________________________
Authorized Officer
<PAGE>
4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
_____________________________________________________________________________
_____________________________________________________________________________
_____________________________________________________________________________
(Insert assignee's social security or tax identification number)
____________________________________________________________________________
____________________________________________________________________________
___________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
agent to transfer this Common Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _____________________
Signature: _________________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
<PAGE>
EXHIBIT 4.6
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT, dated as of __________, 19__, is by and among
VINTAGE PETROLEUM, INC., a Delaware corporation, ______________, a {national
banking association}, and the holders from time to time of the Depositary Shares
described herein.
WHEREAS it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of _____ Preferred Stock, Series __, $0.01
par value, of VINTAGE PETROLEUM, INC. with the Depositary (as hereinafter
defined) for the purposes set forth in this Deposit Agreement and for the
issuance hereunder of Receipts (as hereinafter defined) evidencing Depositary
Shares (as hereinafter defined) in respect of the Stock (as hereinafter defined)
so deposited.
NOW, THEREFORE, in consideration of the premises, the parties hereto agree
as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Stock as a series of preferred
stock of the company.
"Company" shall mean Vintage Petroleum, Inc., a Delaware corporation, and
its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, a {national banking association}, and
any successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
__________ interest in a share of the Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
<PAGE>
"Depositary's Office" shall mean the office of the Depositary at
__________, __________, __________, at which at any particular time its
depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall mean
the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be appointed
to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's _____ Preferred Stock, Series
__, $0.01 par value.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
2.1 Form and Transfer of Receipts. Definitive Receipts shall be
engraved or printed or lithographed and shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company delivered in compliance with Section 2.2, shall execute and deliver
temporary Receipts which are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of which
they are issued and with such appropriate insertions, omissions, substitutions
and other variations as the persons executing such Receipts may determine, as
evidenced by their execution of such Receipts. If temporary Receipts are
issued, the Company and the Depositary will cause definitive Receipts to be
prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts
upon surrender of the temporary Receipts at an office described in the third
paragraph of Section 2.2, without charge to the holder. Upon surrender for
cancellation of any one or more temporary Receipts, the Depositary shall execute
and deliver in exchange therefor definitive Receipts representing the same
number of Depositary Shares as represented by the surrendered temporary Receipt
or Receipts. Such exchange shall be made at the Company's expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all
respects be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.
-2-
<PAGE>
Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided, that such signature may be
a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
2.2 Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof. Subject to the terms and conditions of this Deposit Agreement, the
Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates for the
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with all such certifications as may be
required by the Depositary in accordance with the provisions of this Deposit
Agreement, and together with a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock.
Deposited Stock shall be held by the Depositary at the Depositary's Office
or at such other place or places as the Depositary shall determine.
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Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required as above specified, and upon recordation of the Stock
so deposited on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares relating to the Stock so deposited and registered in such name
or names as may be requested by such person or persons. The Depositary shall
execute and deliver such Receipt or Receipts at the Depositary's Office or such
other offices, if any, as the Depositary may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than __________
shares of Stock.
2.3 Redemption of Stock. Whenever the Company shall elect to redeem
shares of Stock in accordance with the provisions of the Certificate, it shall
(unless otherwise agreed in writing with the Depositary) mail notice to the
Depositary of such proposed redemption, by first class mail, postage prepaid not
less than 40 or more than 70 days prior to the date fixed for redemption of
Stock in accordance with Section ____ of the Certificate. On the date of such
redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Stock to be redeemed, plus any accrued
and unpaid dividends thereon, the Depositary shall redeem the Depositary Shares
relating to such Stock. The Depositary shall mail notice of such redemption and
the proposed simultaneous redemption of the number of Depositary Shares relating
to the Stock to be redeemed, by first-class mail, postage prepaid, not less than
30 and not more than 60 days prior to the date fixed for redemption of such
Stock and Depositary Shares (the "Redemption Date"), to the Record Holders of
the Depositary Shares to be so redeemed, at the addresses of such holders as
they appear on the records of the Depositary; but neither failure to mail any
such notice to one or more such holders nor any defect in any notice to one or
more such holders shall affect the sufficiency of the proceedings for redemption
as to other holders. Each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such holder are to be redeemed, the number of such
Depositary Shares held by such holder to be so redeemed; (iii) the redemption
price; (iv) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; and (v) that dividends in
respect of the Stock underlying the Depositary Shares to be redeemed will cease
to accrue and accumulate at the close of business on such Redemption Date. In
case less than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be so redeemed shall be selected by lot, pro rata or such
other method as may be determined by the Depositary to be equitable.
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Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Stock to be redeemed by it as set forth in the Company's notice provided for
in the preceding paragraph) all dividends in respect of the Depositary Shares so
called for redemption shall cease to accrue and accumulate, the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares, cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to the proportionate part of the redemption price per
share paid in respect of the shares of Stock plus all money and other property,
if any, paid with respect to such Depositary Shares, including all amounts paid
by the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not theretofore
been paid.
If less than all the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with the redemption payment, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not
called for redemption.
2.4 Registration of Transfers of Receipts. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
from time to time transfers of Depositary Shares upon any surrender of the
Receipt or Receipts evidencing such Depositary Shares by the holder in person or
by duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer. Thereupon the Depositary shall execute a new
Receipt or Receipts evidencing the same aggregate number of Depositary Shares as
those evidenced by the Receipt or Receipts surrendered and deliver such new
Receipt or Receipts to or upon the order of the person entitled thereto.
2.5 Split-ups and Combinations of Receipts; Surrender of Depositary
Shares and Withdrawal of Stock. Upon surrender of a Receipt or Receipts at the
Depositary's Office or at such other offices as it may designate for the purpose
of effecting a split-up of combination of such Receipt or Receipts, and subject
to the terms and conditions of this Deposit Agreement, the Depositary shall
execute and deliver a new Receipt or Receipts in the denominations requested,
evidencing the aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered.
Any holder of Depositary Shares may withdraw the number of whole shares of
Stock underlying such Depositary Shares and all money and other property, if
any, underlying such Depositary Shares by surrendering Receipts evidencing such
Depositary Shares at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder,
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or to the person or persons designated by such holder as hereinafter provided,
the number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Receipts evidencing Depositary Shares therefor. If a
Receipt delivered by a holder to the Depositary in connection with such
withdrawal shall evidence a number of Depositary Shares relating to other than a
number of whole shares of Stock, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 3.2) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem appropriate.
If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
Delivery of the Stock and money and other property, if any, underlying the
Depositary Shares surrendered for withdrawal shall be made by the Depositary at
the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
2.6 Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any
Receipt, the Depositary, any of the Depositary's Agents or the Company may
require payment to it of a sum sufficient for the payment (or, in the event that
the Depositary or the Company shall have made such payment, the reimbursement to
it) of any charges or expenses payable by the holder of a Receipt pursuant to
Section 5.7, may require the production of evidence satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the registration
of transfer of Depositary Shares may be refused and the registration of
transfer, surrender or exchange of outstanding Depositary Shares may be
suspended (i) during any period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to
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time because of any requirement of law or of any government or governmental body
or commission or under any provision of this Deposit Agreement.
2.7 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, or the authenticity thereof and of his or her ownership thereof
and (ii) the furnishing of the Depositary with reasonable indemnification
satisfactory to it.
2.8 Cancellation and Destruction of Surrendered Receipt. All
Receipts surrendered to the Depositary or any Depositary's agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
ARTICLE 3
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
3.1 Filing Proofs, Certificates and Other Information. Any holder of
a Depositary Share may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Depositary Share or the withdrawal of any Stock underlying
Depositary Shares or the distribution of any dividend or other distribution or
the sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such representations
and warranties are made.
3.2 Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
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3.3 Warranty as to Stock. The Company hereby represents and warrants
that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of
the Stock and the issuance of the Receipts.
ARTICLE 4
THE DEPOSITED SECURITIES; NOTICES
4.1 Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to the Record Holders of Depositary
Shares on the record date fixed pursuant to Section 4.4 such amounts of such
dividend or distributions as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares held by such holders; provided, however,
that in case the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes, the amount made available for
distribution or distributed in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to Record
Holders or Depositary Shares then outstanding.
4.2 Distributions Other than Cash. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to the Record Holders of Depositary
Shares on the record date fixed pursuant to Section 4.4 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares held by such holders,
in any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charge) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part hereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.1 and 3.2, be distributed or made available for
distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.1 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
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the effect that such securities have been registered under the Securities Act of
1933 or do not need to be registered.
4.3 Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
by the Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel to the
effect that such rights, preferences or privileges have been registered under
the Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities to use its best efforts to
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holder of
Depositary Shares any right, preference or privilege to subscribe for or to
purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provision of such Act.
If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or
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privileges to be made available to the holders of Depositary Shares, the Company
agrees with the Depositary that the Company will use its best efforts to take
such action or obtain such authorization, consent or permit sufficiently in
advance of the expiration of such rights, preferences or privileges to enable
such holders to exercise such rights, preferences or privileges.
4.4 Notice of Dividends, etc.; Fixing of Record Date for Holders of
Depositary Shares. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote, or of which holders of Stock are entitled
to notice, the Depositary shall in each such instance fix a record date (which
shall be the same date as the record date fixed by the Company with respect to
the Stock) for the determination of the holders of Depositary Shares who shall
be entitled to receive a distribution in respect of such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or to
give instructions for the exercise of voting rights at any such meeting, or who
shall be entitled to receive notice of such meeting.
4.5 Voting Rights. Upon receipt of notice of any meeting at which
the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail to the Record Holders of Depositary Shares a notice
which shall contain (i) such information as is contained in such notice of
meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.4, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Depositary Share, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting with respect to such Stock unless directed to the contrary by the
holders of all the Depositary Shares) to the extent of the Stock underlying the
Depositary Shares.
4.6 Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc. Upon any change in par or liquidation value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of
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the Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
4.7 Delivery of Reports. The Depositary will forward to Record
Holders of Receipts, at their respective addresses appearing in the Depositary's
books, all notices, reports and communications received from the Company which
are delivered to the Depositary and which the Company is required to furnish to
the holders of Stock or Receipts.
4.8 List of Holders. Promptly upon request from time to time by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of Depositary Shares of all persons in whose names
Depositary Shares are registered on the books of the Depositary or Registrar, as
the case may be.
ARTICLE 5
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
5.1 Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Offices, or at any Registrar's Office, at
which the Depositary shall have complete access to all books and records
maintained on the Company's behalf, facilities for the execution and delivery,
surrender and exchange of Receipts and the registration and registration of
transfer of Depositary Shares, and at the offices of the Depositary's Agents, if
any, facilities for the delivery, surrender and exchange of Receipts and the
registration of transfer of Depositary Shares, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares.
The Depositary may close such books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
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If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
5.2 Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, any Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share if by reason of any provision of
any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any event of force majeure or war or other
circumstance beyond the control of the relevant party, the Depositary, any
Depositary's Agent, any Registrar or the Company shall be prevented or forbidden
from doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Depositary Share (i) by reason of any nonperformance or delay,
caused as aforesaid, in the performance of any act or thing which the terms of
this Deposit Agreement provide shall or may be done or performed, or (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement except, in case of any such exercise or failure to
exercise discretion not caused as aforesaid, if caused by the gross negligence
or willful misconduct of the party charged with such exercise or failure to
exercise.
5.3 Obligations of the Depositary, the Depositary's Agents, any
Registrar and the Company. Neither the Depositary nor any Depositary's Agent
nor any Registrar nor the Company assumes any obligation or shall be subject to
any liability under this Deposit Agreement to holders of Depositary Shares other
than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion may involve it in expense or liability
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
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Neither the Depositary nor any Depositary's Agent nor any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Depositary Share or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the property party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or non-action is in good faith. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or any Registrar. The Depositary
will indemnify the Company against any liability which may arise out of acts
performed or omitted by the Depositary or its agents due to its or their
negligence or bad faith. The Depositary, the Depositary's Agents, any Registrar
and the Company may own and deal in any class of securities of the Company and
its affiliates and in Depositary Shares. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the receipt or delivery of the
notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal office
in the United States of America and having a combined capital and surplus of at
least $50,000,000. If no successor Depositary shall have been so appointed
within 60 days after delivery of such notice, the resigning or removed
Depositary may petition any court of competent jurisdiction for the appointment
of a successor Depositary. Every successor Depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor
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<PAGE>
all rights and powers of such predecessor hereunder, shall duly assign, transfer
and deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor and shall deliver to such successor a
list of the Record Holders of all outstanding Depositary Shares. Any successor
Depositary shall promptly mail notice of its appointment to the Record Holders
of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
5.5 Corporate Notices and Reports. The Company agrees that it will
transmit to the Depositary all notices, reports and communications (including,
without limitation, financial statements) required by law, the rules of any
national securities exchange upon which the Stock, the Depositary Shares or the
Receipts are listed or by the Company's Certificate of Incorporation (including
the Certificate) to be furnished by the Company to holders of the Stock.
5.6 Indemnification by the Company. The Company shall indemnify the
Depositary, any Depositary's Agent and any Registrar against, and hold each of
them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Deposit Agreement and the Depositary Shares (a)
by the Depositary, any Registrar or any of their respective agents (including
any Depositary's Agent), except for any liability arising out of negligence,
willful misconduct or bad faith on the respective parts of any such person or
persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
5.7 Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of Depositary Share, the
Depositary incurs charges or expenses for which it is not otherwise liable
hereunder, such holder will be liable for such charges and expenses. All other
reasonable charges and expenses of the Depositary, any Depositary's Agent
hereunder and any Registrar (including, in each case, reasonable fees and
expenses of counsel) incident to the performance of their respective obligations
hereunder will be paid upon consultation and agreement between the Depositary
and the Company as to the amount and nature of such charges and expenses. The
Depositary shall present its statement for charges and expenses to the Company
once every three months or at such other intervals as the Company and the
Depositary may agree.
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<PAGE>
ARTICLE 6
AMENDMENT AND TERMINATION
6.1 Amendment. The form of the Receipts and any provisions of this
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect which they may deem
necessary or desirable; provided, however, that no such amendment which shall
materially and adversely alter the rights of the existing holders of Depositary
Shares shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. Each
holder of an outstanding Depositary Share at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Depositary Share, to
consent and agree to such amendment and to be bound by this Deposit Agreement as
amended thereby.
6.2 Termination. This Deposit Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed and any accumulated and unpaid dividends on the Stock
represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to Section 2.3 or (ii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.1 or 4.2, as
applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agents and any Registrar under
Sections 5.6 and 5.7.
ARTICLE 7
MISCELLANEOUS
7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
7.2 Exclusive Benefit of Parties. This Deposit Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
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<PAGE>
7.3 Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
7.4 Notices. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to the Company at One California Street, San
Francisco, California 94111 to the attention of the Senior Vice President,
Legal, External Affairs and Secretary, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Depositary at the Depositary's office at ,
, , or at any other address of which the Depositary shall have
notified the Company in writing.
Any and all notices to be given to any Record Holder of a Depositary Share
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or telegram or telex
confirmed by letter, addressed to such Record Holder at the address of such
Record Holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company
may, however, act upon any telegram or telex message received by it from the
other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
7.5 Depositary's Agents. The Depositary may from time to time, with
the prior written approval of the Company, appoint Depositary's Agents to act in
any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
7.6 Holders of Receipts Are Parties. The holders of Depositary
Shares from time to time shall be parties to this Deposit Agreement and shall be
bound by all of the terms and conditions hereof and of the Receipts evidencing
such Depositary Shares by acceptance of delivery thereof.
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<PAGE>
7.7 Governing Law. THIS DEPOSIT AGREEMENT AND RECEIPTS AND ALL
RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF {NEW
YORK}.
7.8 Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Depositary Share.
7.9 Headings. The headings of articles and sections in this Deposit
Agreement and in the form of Receipt set forth in Exhibit A hereto have been
inserted for convenience only and are not to be regarded as part of this Deposit
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed this
Deposit Agreement as of the day and year first above set forth, and all holders
of Depositary Shares shall become parties hereto by and upon an acceptance by
them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
VINTAGE PETROLEUM, INC.
By
------------------------------
{Name and Title}
{Name of Depositary}
By
------------------------------
Authorized Officer
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<PAGE>
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
GENERAL FORM OF FACE OF RECEIPT
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __________ PREFERRED STOCK
VINTAGE PETROLEUM, INC.
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of __________
__________, as Depositary (the "Depositary"), hereby certifies that
__________ is the registered owner of __________ Depositary Shares ("Depositary
Shares"), each Depositary Share representing __________ of one share of
__________ Preferred Stock, Series __, par value $[ ] per share (the "Stock"),
of Vintage Petroleum, Inc., a Delaware corporation (the "Company"), on deposit
with the Depositary, subject to the terms and entitled to the benefits of the
Deposit Agreement dated as of __________, 199_ (the "Deposit Agreement"),
between the Company, the Depositary and all holders from time to time of
Depositary Receipts. By accepting this Depositary Receipt the holder hereof
becomes a party to and agrees to be bound by all the terms and conditions of the
Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for
any purpose or entitled to any benefits under the Deposit Agreement unless it
shall have been executed by the Depositary by the manual signature of a duly
authorized officer or, if executed in
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<PAGE>
facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: Depositary
By:
------------------------------
Authorized Officer
Registrar
By:
------------------------------
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<PAGE>
{GENERAL FORM OF REVERSE OF RECEIPT}
Vintage Petroleum, Inc. will furnish without charge to each receiptholder
who so requests a copy of the Deposit Agreement and a statement or summary of
the powers, designations, preferences and relative, participating, option or
other special rights of each class of stock or series thereof which Vintage
Petroleum, Inc. is authorized to issue and the qualifications, limitations or
restrictions of such preferences and/or rights. Any such request is to be
addressed to the Secretary of Vintage Petroleum, Inc.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________ Custodian _________
(Cust) (State)
Additional abbreviations may also be used though not in the above list.
For value received, __________ hereby sell(s), assign(s) and transfer(s) onto
__________
(Please insert social security or other identifying number of Assignee)
Please print or type Name and address including postal Zip Code of Assignee
__________ Depositary Shares represented by the within receipt and all rights
thereunder, and do hereby irrevocably constitute and appoint __________ Attorney
to transfer said Depositary Shares on the books of the within-named Depositary
with full power of substitution in the premises.
Dated: __________
NOTICE: The signature to this assignment must correspond with the name as
written on the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
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<PAGE>
EXHIBIT 4.8
================================================================================
FORM OF
GUARANTEE AGREEMENT
OF
VINTAGE PETROLEUM CAPITAL TRUST I
----------------
Dated as of [ ]
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions.......................................................... 2
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application.................... 5
SECTION 2.02. Lists of Holders of Preferred
Securities......................................... 5
SECTION 2.03. Reports by the Guarantee Trustee.................... 6
SECTION 2.04. Periodic Reports to Guarantee
Trustee............................................ 6
SECTION 2.05. Evidence of Compliance with
Conditions Precedent............................... 6
SECTION 2.06. Events of Default; Waiver........................... 6
SECTION 2.07. Disclosure of Information........................... 7
SECTION 2.08. Conflicting Interest................................ 7
ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee
Trustee............................................ 7
SECTION 3.02. Certain Rights and Duties of the
Guarantee Trustee.................................. 8
SECTION 3.03. Not Responsible for Recitals or
Issuance of Guarantee..............................11
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications......................................11
SECTION 4.02. Appointment, Removal and Resignation
of Guarantee Trustee...............................12
ARTICLE V
Guarantee
SECTION 5.01. Guarantee...........................................13
<PAGE>
Page
----
SECTION 5.02. Waiver of Notice....................................13
SECTION 5.03. Obligations Not Affected............................13
SECTION 5.04. Enforcement of Guarantee............................15
SECTION 5.05. Guarantee of Payment................................15
SECTION 5.06. Subrogation.........................................15
SECTION 5.07. Independent Obligations.............................16
ARTICLE VI
Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions..........................16
SECTION 6.02. Subordination.......................................17
ARTICLE VII
Termination..........................................................17
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation.........................................18
SECTION 8.02. Indemnification.....................................18
ARTICLE IX
Miscellaneous
SECTION 9.01. Successors and Assigns..............................19
SECTION 9.02. Amendments..........................................19
SECTION 9.03. Notices.............................................19
SECTION 9.04. Genders.............................................20
SECTION 9.05. Benefit.............................................20
SECTION 9.06. Governing Law.......................................20
SECTION 9.07. Counterparts........................................20
SECTION 9.08. Exercise of Overallotment Option....................20
<PAGE>
GUARANTEE AGREEMENT dated as of [ ], between
Vintage Petroleum, Inc., a Delaware corporation (the
"Guarantor"), and [ ], a [ ]
banking corporation, as the initial Guarantee Trustee
(as defined herein) for the benefit of the Holders (as
defined herein) from time to time of the Preferred
Securities (as defined herein) of Vintage Petroleum
Capital Trust I, a Delaware business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust (the
"Declaration") dated as of [ ], among the trustees named therein,
Vintage Petroleum, Inc., as Sponsor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer may issue
up to $[ ] aggregate liquidation amount of its [ ]% Preferred
Trust Securities (the "Preferred Securities") representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in Exhibit B to the Declaration, of which $[ ] aggregate liquidation
amount of Preferred Securities are being issued as of the date hereof by the
Issuer pursuant to the Underwriting Agreement (as defined in the Declaration);
and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Securities, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time.
<PAGE>
2
ARTICLE I
Definitions
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble above have the respective meanings assigned to them in
this Article I.
(b) A term defined anywhere in this Guarantee Agreement has the same
meaning throughout.
(c) All references to "this Guarantee Agreement" are to this
Guarantee Agreement as modified, supplemented or amended from time to time.
(d) All references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified.
(e) A term defined in the Trust Indenture Act has the same meaning
when used in this Guarantee Agreement unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer, having the terms set forth in
Exhibit C to the Declaration.
"Covered Person" means any Holder.
"Debentures" means the series of Junior Subordinated Debentures issued
by the Guarantor under the Indenture to the Property Trustee and entitled the "[
]% Junior Subordinated Debentures due [ ]".
"Distributions" has the meaning set forth in Exhibit B to the
Declaration.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under
<PAGE>
3
this Guarantee Agreement; provided, however, that except with respect to such a
default resulting from a failure to pay any Guarantee Payment, such default
shall have continued for more than 30 days.
"Guarantee Payments" shall mean the following Distributions and other
payments, without duplication, with respect to the Preferred Securities, to the
extent not made or paid by the Issuer: (i) any accrued and unpaid Distributions
that are required to be paid on the Preferred Securities, but only if and to the
extent that in each case the Guarantor has made a payment to the Property
Trustee of interest on the Debentures, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to any Preferred Securities called for redemption by the
Issuer, but only if and to the extent that in each case the Guarantor has made a
payment to the Property Trustee of interest or principal on the Debentures, and
(iii) upon a voluntary or involuntary liquidation, dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution of
Debentures to Holders or the redemption of all the Preferred Securities upon the
maturity or redemption of the Debentures as provided in the Declaration), the
lesser of (a) the aggregate of the liquidation amount and all accrued and unpaid
Distributions on the Preferred Securities to the date of payment, to the extent
the Issuer has funds available therefor, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders upon liquidation of the
Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means [ ] until a Successor
Guarantee Trustee has been appointed and accepted such appointment pursuant to
the terms of this Guarantee Agreement and thereafter means each such Successor
Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any entity directly or indirectly controlling
or controlled by or under direct or indirect common control with the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, and any officers,
<PAGE>
4
directors, shareholders, members, partners, employees, representatives or agents
of the Guarantee Trustee.
"Indenture" means the Junior Subordinated Debenture Indenture dated as
of [ ], between the Guarantor and [ ], as trustee,
as amended and supplemented from time to time, pursuant to which the Debentures
are to be issued.
"Investment Company" means an investment company as defined in the
Investment Company Act.
"Investment Company Act" means the Investment Company Act of 1940, as
amended from time to time, or any successor legislation.
"Liquidation Distribution" has the meaning set forth in the definition
of Guarantee Payments.
"Majority in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class who are the
record owners of Preferred Securities whose aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) represents more than 50% of the aggregate
liquidation amount of all outstanding Preferred Securities.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning set forth in the first WHEREAS
clause above.
"Property Trustee" means the Person acting as Property Trustee under
the Declaration.
"Redemption Price" has the meaning set forth in the definition of
Guarantee Payments.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer of the Guarantee Trustee with responsibility for the administration
of this Guarantee Agreement and also means, with respect to a particular
<PAGE>
5
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of, and familiarity with, the particular
subject.
"66-2/3% in liquidation amount of the Preferred Securities" means,
except as otherwise required by the Trust Indenture Act, Holder(s) of
outstanding Preferred Securities voting together as a single class who are the
record owners of Preferred Securities whose aggregate liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) represents 66-2/3% or more of the aggregate
liquidation amount of all outstanding Preferred Securities.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as a Guarantee Trustee under Section 4.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This Guarantee
Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee Agreement and shall, to the extent
applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this Guarantee
Agreement shall not affect the nature of the Preferred Securities as equity
securities representing preferred undivided beneficial interests in the assets
of the Issuer.
SECTION 2.02. Lists of Holders of Preferred Securities. (a) The
Guarantor shall provide the Guarantee Trustee with such information as is
required under Section 312(a) of the Trust Indenture Act at the times and in the
manner provided in Section 312(a).
<PAGE>
6
(b) The Guarantee Trustee shall comply with its obligations under
Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03. Reports by the Guarantee Trustee. Within 60 days after
May 15 of each year, the Guarantee Trustee shall provide to the Holders such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form, in the manner and at the times provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the Commission and the
Holders, as applicable, such documents, reports and information as required by
Section 314(a)(1)-(3) (if any) of the Trust Indenture Act and the compliance
certificates required by Section 314(a)(4) and (c) of the Trust Indenture Act,
any such certificates to be provided in the form, in the manner and at the times
required by Section 314(a)(4) and (c) of the Trust Indenture Act (provided that
any certificate to be provided pursuant to Section 314(a)(4) of the Trust
Indenture Act shall be provided within 120 days of the end of each fiscal year
of the Issuer).
SECTION 2.05. Evidence of Compliance with Conditions Precedent. The
Guarantor shall provide the Guarantee Trustee such evidence of compliance with
any conditions precedent, if any, provided for in this Guarantee Agreement which
relate to any of the matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given pursuant to Section 314(c)
of the Trust Indenture Act shall comply with Section 314(e) of the Trust
Indenture Act.
SECTION 2.06. Events of Default; Waiver. (a) Subject to Section
2.06(b), Holders may, by vote of at least a Majority in liquidation amount of
the Preferred Securities, (A) direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or exercising
any trust or power conferred upon the Guarantee Trustee, or (B) on behalf of the
Holders of all Preferred Securities, waive any past Event of Default and its
consequences. Upon such waiver, any 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 Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
<PAGE>
7
(b) The right of any Holder to receive payment of the Guarantee
Payments in accordance with this Guarantee Agreement, or to institute suit for
the enforcement of any such payment, shall not be impaired without the consent
of each such Holder.
SECTION 2.07. Disclosure of Information. The disclosure of
information as to the names and addresses of the Holders in accordance with
Section 312 of the Trust Indenture Act, regardless of the source from which such
information was derived, shall not be deemed to be a violation of any existing
law or any law hereafter enacted which does not specifically refer to Section
312 of the Trust Indenture Act, nor shall the Guarantee Trustee be held
accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
SECTION 2.08. Conflicting Interest. The Declaration shall be deemed
to be specifically described in this Guarantee Agreement for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
ARTICLE III
Powers, Duties and Rights of Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a) This
Guarantee Agreement shall be held by the Guarantee Trustee in trust for the
benefit of the Holders. The Guarantee Trustee shall not transfer its right,
title and interest in this Guarantee Agreement to any Person except a Successor
Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Guarantee Trustee or to a Holder exercising his or her
rights pursuant to Section 5.04. The right, title and interest of the Guarantee
Trustee to this Guarantee Agreement shall vest automatically in each Person who
may hereafter be appointed as Guarantee Trustee in accordance with Article IV.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents have been executed and delivered.
(b) If an Event of Default occurs and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) This Guarantee Agreement and all moneys received by the Property
Trustee hereunder in respect of the
<PAGE>
8
Guarantee Payments will not be subject to any right, charge, security interest,
lien or claim of any kind in favor of or for the benefit of the Guarantee
Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, as their names and addresses appear upon the register, notice of all
Events of Default known to the Guarantee Trustee, unless such Events of Default
shall have been cured before the giving of such notice; provided that, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders. The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default except any Event of Default as to which the Guarantee Trustee
shall have received written notice or a Responsible Officer charged with the
administration of this Guarantee Agreement shall have obtained written notice.
(e) The Guarantee Trustee shall not resign as a Trustee unless a
Successor Guarantee Trustee has been appointed and accepted that appointment in
accordance with Article IV.
SECTION 3.02. Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event of Default and
after the curing or waiving of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee Agreement, and no implied covenants shall be read into this
Guarantee Agreement against the Guarantee Trustee. In case an Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.06(a)),
the Guarantee Trustee shall exercise such of the rights and powers vested in it
by this Guarantee Agreement, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
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9
(b) No provision of this Guarantee Agreement shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act or its own wilful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default that may have occurred;
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Guarantee Agreement, and no implied covenants or
obligations shall be read into this Guarantee Agreement against the
Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the Guarantee
Trustee and conforming to the requirements of this Guarantee
Agreement; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee Trustee,
unless it shall be proved that the Guarantee Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders as provided herein relating to the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own
<PAGE>
10
funds or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if it shall
have reasonable ground for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not reasonably
assured to it.
(c) Subject to the provisions of Section 3.02(a) and (b):
(i) whenever in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Guarantee Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part and, if the Trust is excluded
from the definition of Investment Company solely by reason of Rule 3a-7 under
the Investment Company Act ("Rule 3a-7"), subject to the requirements of Rule
3a-7, request and rely upon a certificate, which shall comply with the
provisions of Section 314(e) of the Trust Indenture Act, signed by any
authorized officer of the Guarantor;
(ii) the Guarantee Trustee (A) may consult with counsel (which may be
counsel to the Guarantor or any of its Affiliates and may include any of its
employees) selected by it in good faith and with due care and the written
advice or opinion of such counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon and
in accordance with such advice and opinion and (B) shall have the right at any
time to seek instructions concerning the administration of this Guarantee
Agreement from any court of competent jurisdiction;
(iii) the Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed by it
in good faith and with due care;
(iv) the Guarantee Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Guarantee Agreement at the
request or
<PAGE>
11
direction of any Holders, unless such Holders shall have offered to the
Guarantee Trustee reasonable security and indemnity against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or direction; provided that
nothing contained in this clause (iv) shall relieve the Guarantee Trustee of
the obligation, upon the occurrence of an Event of Default (which has not been
cured or waived) to exercise such of the rights and powers vested in it by
this Guarantee Agreement, and to use the same degree of care and skill in such
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs; and
(v) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders and the signature of the Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such action;
and no third party shall be required to inquire as to the authority of the
Guarantee Trustee to so act, or as to its compliance with any of the terms and
provisions of this Guarantee Agreement, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such action.
SECTION 3.03. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Guarantee Agreement shall be taken as the
statements of the Guarantor and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee Agreement.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Qualifications. (a) There shall at all times be a
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor;
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the Commission
to act as an institutional trustee under the Trust Indenture Act, authorized
under such laws to exercise corporate trust powers, having a combined
<PAGE>
12
capital and surplus of at least $50,000,000, and subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining authority
referred to above, then for the purposes of this Section 4.01(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published; and
(iii) if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7 and to the extent Rule 3a-7 requires a
trustee having certain qualifications to hold title to the "eligible assets"
(as defined in Rule 3a-7) of the Trust, possess those qualifications.
If at any time the Guarantee Trustee shall cease to satisfy the
requirements of clauses (i),(ii) and (iii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02.
If the Guarantee Trustee has or shall acquire any "conflicting interest" within
the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee
and the Guarantor shall in all respects comply with the provisions of Section
310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of Guarantee
Trustee. (a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.02(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.01(a) has been
appointed and has accepted such appointment by written instrument executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
Guarantee Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold office until
its successor shall have been appointed and until its removal or resignation.
(d) The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument (a "Resignation Request") in
writing signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon
<PAGE>
13
such later date as is specified therein; provided, however, that no such
resignation of the Guarantee Trustee shall be effective until: (i) a Successor
Guarantee Trustee possessing the qualifications to act as Guarantee Trustee
under Section 4.01(a) has been appointed and has accepted such appointment by
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor and the resigning Guarantee Trustee; or (ii) until the assets of the
Trust have been completely liquidated and the proceeds thereof distributed to
the Holders, if the Trust is excluded from the definition of an Investment
Company solely by reason of Rule 3a-7.
(e) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.02 within 60 days after
delivery to the Guarantor of a Resignation Request, the resigning Guarantee
Trustee may petition any court of competent jurisdiction for appointment of a
Successor Guarantee Trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer), regardless of
any defense, right of set-off or counterclaim that the Issuer may have or
assert. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.02. Waiver of Notice. The Guarantor hereby waives notice
of acceptance of this Guarantee Agreement and of any liability to which it
applies or may apply, presentment, demand for payment, any right to require a
proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and, to the extent permitted by law, all other notices and
demands.
SECTION 5.03. Obligations Not Affected. The obligations, covenants,
agreements and duties of the
<PAGE>
14
Guarantor under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be
performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period
on the Debentures), Redemption Price, Liquidation Distribution or any other
sums payable under the terms of the Preferred Securities or the extension of
time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit
of creditors, reorganization, arrangement, composition or readjustment of debt
of, or other similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed hereby
or hereby incurred; or
(g) any other circumstances whatsoever that might otherwise constitute
a legal or equitable discharge or defense of a guarantor, it being the intent
of this Section 5.03 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
<PAGE>
15
SECTION 5.04. Enforcement of Guarantee. The Guarantor and the
Guarantee Trustee expressly acknowledge that (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) Holders representing not less than a
Majority in liquidation amount of the Preferred Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available in respect of this Guarantee Agreement, including the giving of
directions to the Guarantee Trustee, or exercising any trust or other power
conferred upon the Guarantee Trustee under this Guarantee Agreement, and (iv) if
the Guarantee Trustee fails to enforce this Guarantee Agreement, any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Issuer, the Guarantee Trustee or any other Person.
Notwithstanding the foregoing, if the Guarantor has failed to make a Guarantee
Payment, a Holder of Preferred Securities may directly institute a proceeding
against the Guarantor for enforcement of such Holder's right to receive payment
under the Guarantee. The Guarantor waives any right or remedy to require that
any action be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement creates
a guarantee of payment and not merely of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer).
SECTION 5.06. Subrogation. The Guarantor shall be subrogated to all
rights, if any, of the Holders against the Issuer in respect of any amounts paid
to the Holders by the Guarantor under this Guarantee Agreement; provided,
however, that the Guarantor shall not (except to the extent required by
mandatory provisions of law) be entitled to enforce or exercise any rights which
it may acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of payment under this Guarantee Agreement,
if, at the time of any such payment, any amounts are due and unpaid under this
Guarantee Agreement. If any amount shall be paid to the Guarantor in violation
of the preceding sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
<PAGE>
16
SECTION 5.07. Independent Obligations. The Guarantor acknowledges
that its obligations hereunder are independent of the obligations of the Issuer
with respect to the Preferred Securities and that the Guarantor shall be liable
as principal and as debtor hereunder to make Guarantee Payments pursuant to the
terms of this Guarantee Agreement notwithstanding the occurrence of any event
referred to in subsections (a) through (g), inclusive, of Section 5.03.
ARTICLE VI
Limitation of Transactions; Subordination
SECTION 6.01. Limitation of Transactions. So long as any Preferred
Securities remain outstanding, the Guarantor will not declare or pay any
dividends on, or redeem, purchase, acquire or make a distribution or liquidation
payment with respect to, any of its common stock or preferred stock or make any
guarantee payment with respect thereto if at such time (i) the Guarantor shall
be in default with respect to its Guarantee Payments or other payment
obligations hereunder, (ii) there shall have occurred any Event of Default (as
defined in the Declaration) or (iii) the Guarantor shall have given notice of
its selection of an extension period (as provided in the Indenture) and such
period, or any extension thereof, is continuing; provided, however, that the
foregoing restrictions will not apply to (i) dividends, redemptions, purchases,
acquisitions, distributions or payments made by the Guarantor by way of issuance
of shares of its capital stock, (ii) any declaration of a dividend under a
shareholder rights plan or in connection with the implementation of a
shareholder rights plan, the issuance of capital stock of the Company under a
shareholder rights plan or the redemption, repurchase or exchange of any such
right distributed pursuant to a shareholder rights plan, (iii) payments of
accrued dividends by the Guarantor upon the redemption, exchange or conversion
of any preferred stock of the Guarantor as may be outstanding from time to time
in accordance with the terms of such preferred stock, (iv) cash payments made by
the Guarantor in lieu of delivering fractional shares upon the redemption,
exchange or conversion of any preferred stock of the Guarantor as may be
outstanding from time to time in accordance with the terms of such preferred
stock (v) payments under this Agreement, or (vi) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees, or related to the
issuance
<PAGE>
17
of Common Stock or rights under a dividend reinvestment and stock purchase plan.
In addition, so long as any Preferred Securities remain outstanding, the
Guarantor (i) will remain the sole direct or indirect owner of all the
outstanding Common Securities and shall not cause or permit the Common
Securities to be transferred except to the extent such transfer is permitted
under Section 9.01(c) of the Declaration, provided that any permitted successor
of the Guarantor under the Indenture may succeed to the Guarantor's ownership of
the Common Securities; and (ii) will use reasonable efforts to cause the Issuer
to continue to be treated as a grantor trust for United States Federal income
tax purposes, except in connection with a distribution of Debentures as provided
in the Declaration.
SECTION 6.02. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank (i)
subordinate and junior in right of payment to all other indebtedness,
liabilities and obligations of the Guarantor and any guarantees, endorsements or
other contingent obligations of the Guarantor in respect of such indebtedness,
liabilities or obligations, including the Debentures, except those made pari
passu or subordinate by their terms, and (ii) senior to all capital stock now or
hereafter issued by the Guarantor and to any guarantee now or hereafter entered
into by the Guarantor in respect of any of its capital stock. The Guarantor's
obligations under this Guarantee Agreement will rank pari passu with respect to
obligations under other guarantee agreements which it may enter into from time
to time to the extent that such agreements shall be entered into in
substantially the form hereof and provide for comparable guarantees by the
Guarantor of payment on preferred securities issued by other business trusts of
which the Guarantor holds the common securities.
ARTICLE VII
Termination
This Guarantee Agreement shall terminate and be of no further force
and effect upon full payment of the Redemption Price of all Preferred
Securities, or upon the distribution of Debentures to Holders in exchange for
all the Preferred Securities, or upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any
<PAGE>
18
Holder must restore payment of any sums paid with respect to the Preferred
Securities or this Guarantee Agreement.
ARTICLE VIII
Limitation of Liability; Indemnification
SECTION 8.01. Exculpation. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Guarantor or
any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Guarantee Agreement
or by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
wilful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of assets, liabilities, profits, losses or
any other facts pertinent to the existence and amounts of assets from which
Distributions to Holders might properly be paid.
SECTION 8.02. Indemnification. (a) To the fullest extent permitted
by applicable law, the Guarantor shall indemnify and hold harmless each
Indemnified Person from and against any loss, damage or claim incurred by such
Indemnified Person by reason of any act or omission performed or omitted by such
Indemnified Person in good faith and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or wilful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, reasonable
expenses (including reasonable legal fees) incurred by an Indemnified Person in
defending any claim,
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19
demand, action, suit or proceeding shall, from time to time, be advanced by the
Guarantor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Guarantor of an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
8.02(a).
ARTICLE IX
Miscellaneous
SECTION 9.01. Successors and Assigns. All guarantees and agreements
contained in this Guarantee Agreement shall bind the successors, assignees,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders of the Preferred Securities then outstanding. Except in
connection with a consolidation, merger or conveyance, transfer or lease of
assets involving the Guarantor that is permitted under Article Ten of the
Indenture, the Guarantor shall not assign its obligations hereunder.
SECTION 9.02. Amendments. Except with respect to any changes which
do not adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Guarantee Agreement may only be amended with the
prior approval of the Holders of not less than 66-2/3% in liquidation amount of
the Preferred Securities. The provisions of Section 12.02 of the Declaration
concerning meetings of Holders shall apply to the giving of such approval.
SECTION 9.03 Notices. Any notice, request or other communication
required or permitted to be given hereunder shall be in writing, duly signed by
the party giving such notice, and delivered, telecopied or mailed by first class
mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Facsimile No.: (918) [ ]
Attention: Chief Financial Officer
<PAGE>
20
(b) if given to the Guarantee Trustee, to the address set forth below
or such other address as the Guarantee Trustee may give notice of to the
Holders:
[ ]
[ ]
[ ]
[ ]
Facsimile No.: ( ) [ ]
Attention: [ ]
(c) if given to any Holder of Preferred Securities, at the address set
forth on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.04. Genders. The masculine, feminine and neuter genders
used herein shall include the masculine, feminine and neuter genders.
SECTION 9.05. Benefit. This Guarantee Agreement is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 9.06. Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS).
SECTION 9.07. Counterparts. This Guarantee Agreement may be executed
in counterparts, each of which shall be an original; but such counterparts shall
together constitute one and the same instrument.
SECTION 9.08. Exercise of Overallotment Option. If and to the extent
that Preferred Securities are issued by the Issuer upon exercise of the
overallotment option referred to in the first WHEREAS clause, the Guarantor
agrees to give prompt notice thereof to the Guarantee
<PAGE>
21
Trustee, but the failure to give such notice shall not relieve the Guarantor of
any of its obligations hereunder.
This Guarantee Agreement is executed as of the day and year first
above written.
VINTAGE PETROLEUM, INC.
by
----------------------------
Name:
Title:
[ ], as Guarantee Trustee
by
----------------------------
Name:
Title:
<PAGE>
Exhibit 5.1
[CONNER & WINTERS LETTERHEAD APPEARS HERE]
May 3, 1999
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Re: Vintage Petroleum, Inc.
Registration Statement on Form S-3
Gentlemen:
We have acted as counsel for Vintage Petroleum, Inc., a Delaware
corporation (the "Company"), and Vintage Petroleum Capital Trust I, a Delaware
business trust (the "Trust"), in connection with the filing of a registration
statement on Form S-3 (the "Registration Statement") with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), for the registration of the sale from time to time of up to
$400,000,000 aggregate offering price of (i) unsecured debt securities of the
Company, which may be either senior or subordinated (collectively, the "Debt
Securities"), (ii) unsecured junior subordinated debt securities of the Company
(the "Junior Subordinated Debt Securities"), (iii) shares of the Company's
preferred stock, par value $0.01 per share (the "Preferred Stock"), which may be
issued in the form of depositary shares evidenced by depositary receipts (the
"Depositary Shares"), (iv) shares of the Company's common stock, par value
$0.005 per share (the "Common Stock"), (v) preferred securities representing
preferred undivided beneficial ownership interests in the Trust (the "Preferred
Securities"), and (vi) unconditional guarantees by the Company of the
obligations of the Trust under the Preferred Securities (the "Guarantee" and,
together with the Debt Securities, Junior Subordinated Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Preferred Securities, the
"Securities"). The Securities will be sold or delivered from time to time as
set forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplements").
We have examined (i) the Registration Statement, (ii) the form of Indenture
relating to the Debt Securities (the "Indenture") to be executed by the Company
and The Chase Manhattan Bank (the "Bank"), as Indenture Trustee, filed as an
exhibit to the Registration Statement, (iii) the form of Junior Subordinated
Indenture relating to the Junior Subordinated Debt Securities (the "Junior
Subordinated Indenture") to be executed by the Company and the Bank, as Junior
Subordinated Indenture Trustee, filed as an exhibit to the Registration
Statement, and (iv) the form of Guarantee Agreement (the "Guarantee Agreement")
to be executed by the Company and the Bank, as Guarantee
<PAGE>
Vintage Petroleum, Inc.
May 3, 1999
Page 2
Trustee, filed as an exhibit to the Registration Statement. In addition, we have
(a) examined such certificates of public officials and of corporate officers and
directors and such other documents and matters as we have deemed necessary or
appropriate, (b) relied upon the accuracy of facts and information set forth in
all such documents, and (c) assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies, and the
authenticity of the originals from which all such copies were made.
Based on the foregoing and subject to the qualifications and limitations
stated herein, we are of the opinion that:
1. The Debt Securities proposed to be sold by the Company, when (i) the
Indenture and any supplemental indenture in respect of the Debt Securities have
been duly executed and delivered, (ii) the terms of the Debt Securities have
been duly established in accordance with the Indenture and any applicable
supplemental indenture relating to the Debt Securities, and (iii) the Debt
Securities have been duly executed and authenticated in accordance with the
Indenture and any related supplemental indenture in respect of the Debt
Securities and duly issued and delivered by the Company upon payment of the
consideration therefor in the manner contemplated in the Registration Statement
and any Prospectus Supplement relating thereto, will constitute valid and
binding obligations of the Company, enforceable in accordance with their terms.
2. The Junior Subordinated Debt Securities proposed to be sold by the
Company, when (i) the Junior Subordinated Indenture and any supplemental
indenture in respect of the Junior Subordinated Debt Securities have been duly
executed and delivered, (ii) the terms of the Junior Subordinated Debt
Securities have been duly established in accordance with the Junior Subordinated
Indenture and any applicable supplemental indenture relating to the Junior
Subordinated Debt Securities, and (iii) the Junior Subordinated Debt Securities
have been duly executed and authenticated in accordance with the Junior
Subordinated Indenture and any related supplemental indenture in respect of the
Junior Subordinated Debt Securities and duly issued and delivered by the Company
upon payment of the consideration therefor in the manner contemplated in the
Registration Statement and any Prospectus Supplement relating thereto, will
constitute valid and binding obligations of the Company, enforceable in
accordance with their terms.
3. The shares of Preferred Stock proposed to be sold by the Company, when
all necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of such series of Preferred Stock and such
shares of Preferred Stock are issued and delivered upon payment of the
consideration therefor in the manner contemplated in the Registration Statement
and any Prospectus Supplement relating thereto, will be validly issued, fully
paid and non-assessable.
4. The shares of Common Stock proposed to be sold by the Company, when
all necessary corporate action on the part of the Company has been taken to
authorize the issuance and
<PAGE>
Vintage Petroleum, Inc.
May 3, 1999
Page 3
sale of such shares of Common Stock and such shares of Common Stock are issued
and delivered upon payment of the consideration therefor in the manner
contemplated in the Registration Statement and any Prospectus Supplement
relating thereto will be validly issued, fully paid and non-assessable.
5. The Guarantee, when the Guarantee Agreement has been duly executed and
delivered by the Company and the Guarantee Trustee and the Preferred Securities
have been duly issued and delivered by the Trust as contemplated by the
Registration Statement and any Prospectus Supplement relating thereto, will
constitute the valid and binding obligation of the Company, enforceable in
accordance with its terms.
Our opinions set forth in paragraphs 1, 2 and 5 above are subject to the
effects of bankruptcy, insolvency, reorganization, fraudulent transfer or
conveyance, moratorium or other similar laws now or hereinafter in effect
relating to or affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
We are members of the bar of the State of Oklahoma. Our opinion expressed
above is limited to the laws of the State of Oklahoma, the corporate laws of the
State of Delaware, and the federal laws of the United States of America, and we
do not express any opinion herein concerning the laws of any other jurisdiction.
To the extent that the opinion expressed herein relates to matters governed by
the laws of the State of New York, we have assumed that the applicable law of
the State of New York is the same as the applicable law of the State of Oklahoma
of all relevant respects.
We consent to the filing of this opinion as an exhibit to the Registration
Statement and to the reference to our firm in the Prospectus constituting a part
of the Registration Statement under the caption "Legal Opinions." In giving
this consent, we do not thereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act.
Yours very truly,
/s/ CONNER & WINTERS
CONNER & WINTERS,
A Professional Corporation
<PAGE>
EXHIBIT 5.2
[RICHARDS, LAYTON & FINGER LETTERHEAD]
May 3, 1999
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Re: Vintage Petroleum Capital Trust I
---------------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Vintage Petroleum, Inc.,
a Delaware corporation (the "Sponsor"), and Vintage Petroleum Capital Trust I, a
Delaware business trust (the "Trust "), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, as filed with the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
October 15, 1997;
(b) The Declaration of Trust, dated as of October 15, 1997 among the
Sponsor and the trustees named therein;
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a preliminary prospectus (the "Prospectus") relating to the
Preferred Securities of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), to be filed by the Sponsor and the
Trust with the Securities and Exchange Commission;
(d) A form of Amended and Restated Declaration of Trust for the Trust
to be entered into between the Sponsor, the trustees of the Trust named therein,
and the holders, from
<PAGE>
Vintage Petroleum, Inc.
May 3, 1999
Page 2
time to time, of the undivided beneficial interests in the assets of the Trust
(the "Declaration"), to be attached as an exhibit to the Registration Statement;
and
(e) A Certificate of Good Standing for the Trust, dated April 15,
1999, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration
will constitute the entire agreement among the parties thereto with respect to
the subject matter thereof, including with respect to the creation, operation
and termination of the Trust, and that the Declaration and the Certificate of
Trust will be in full force and effect and will not be amended, (ii) except to
the extent provided in paragraph 1 below, the due organization or due formation,
as the case may be, and valid existence in good standing of each party to the
documents examined by us under the laws of the jurisdiction governing its
organization or formation, (iii) the legal capacity of natural persons who are
parties to the documents examined by us, (iv) that each of the parties to the
documents examined by us has the power and authority to execute and deliver, and
to perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Security Certificate for such Preferred Security and the payment for such
Preferred Security, in accordance with the Declaration and the Registration
Statement, and (vii) that the Preferred Securities are authenticated, issued and
sold to the Preferred Security Holders in accordance with the Declaration and
the Registration
<PAGE>
Vintage Petroleum, Inc.
May 3, 1999
Page 3
Statement. We have not participated in the preparation of the Registration
Statement or the Prospectus and assume no responsibility for their contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Business Trust Act.
2. The Preferred Securities of the Trust will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Declaration.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. We hereby
consent to the use of our name under the heading "Legal Opinions" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
<PAGE>
EXHIBIT 12
Vintage Petroleum, Inc. & Subsidiaries
Computation of Ratio of Earnings to Fixed Charges
(Dollars in thousands)
<TABLE>
<CAPTION>
Years Ended December 31,
--------------------------------------------------------------------------
1994 1995 1996 1997 1998
------------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
Income (loss) before income taxes $23,190 $12,241 $43,645 $62,032 ($131,229)
Add fixed charges:
Interest expense 12,002 20,178 30,109 36,762 43,680
Debt cost amortization 97 122 0 0 0
Capitalized interest 0 0 0 0 0
-------------------------------------------------------------------------
Total fixed charges 12,099 20,300 30,109 36,762 43,680
-------------------------------------------------------------------------
Adjusted earnings $35,192 $32,419 $73,754 $98,794 ($87,549)
=========================================================================
Fixed charge coverage 2.9x 1.6x 2.4x 2.7x --
</TABLE>
Note: Adjusted earnings for the year ended December 31, 1998 were insufficient
to cover fixed charges by $131.2 million.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-3 Registration Statement of our report dated February
24, 1999, included in Vintage Petroleum, Inc.'s Annual Report on Form 10-K dated
March 12, 1999, and to all references to our Firm included in this Form S-3
Registration Statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Tulsa, Oklahoma
April 30, 1999
<PAGE>
EXHIBIT 23.4
[LETTERHEAD OF NETHERLAND, SEWELL & ASSOCIATES, INC.]
CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS
As Petroleum Engineers, we hereby consent to the inclusion of the
information included or incorporated by reference in this Form S-3 Registration
Statement with respect to the oil and gas reserves of Vintage Petroleum, Inc.,
for the United States, Argentina, and Ecuador, the future net revenues from such
reserves, and the present value thereof, which information has been included or
incorporated by reference in this Form S-3 Registration Statement in reliance
upon the report of this firm and upon the authority of this firm as experts in
petroleum engineering. We hereby further consent to all references to our firm
included in this Form S-3 Registration Statement.
NETHERLAND, SEWELL & ASSOCIATES, INC.
By: /s/ Frederic D. Sewell
----------------------------------------
Frederic D. Sewell
President
Dallas. Texas
April 30, 1999
<PAGE>
EXHIBIT 23.5
[LETTERHEAD OF DEGOLYER AND MACNAUGHTON]
April 29, 1999
Vintage Petroleum, Inc.
4200 One Williams Center
Tulsa, Oklahoma 74172
Gentlemen:
We hereby consent to the inclusion of the information incorporated by
reference in this Form S-3 Registration Statement with respect to the Bolivian
oil and gas reserves, as of December 31, 1998, of Vintage Petroleum, Inc. (the
"Company"), the future net revenues from such reserves, and the present value
thereof, as set forth in our "Appraisal Report as of December 31, 1998, on
Reserves of Certain Properties in Bolivia Operated by Vintage Petroleum, Inc.--
SEC Case," which information has been incorporated by reference in this Form S-3
Registration Statement in reliance upon such report of this firm and upon the
authority of this firm as experts in petroleum engineering. However, we are
necessarily unable to verify (i) the accuracy of future net revenues and
discounted present value of future net revenues incorporated by reference from
the Company's filings because our estimates of future net revenues and
discounted present value of future net revenues have been combined with
estimates prepared by other petroleum engineers and (ii) the accuracy of reserve
estimates and the basis for changes to reserve estimates prior to December 31,
1998. We hereby further consent to the references to our firm included in the
"Experts" section in this Form S-3 Registration Statement.
Very truly yours,
/s/ DEGOLYER AND MACNAUGHTON
DeGOLYER and MacNAUGHTON
<PAGE>
EXHIBIT 25.1
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Vintage Petroleum, Inc.
(Exact name of obligor as specified in its charter)
Delaware 73-1182669
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4200 One Williams Center
Tulsa, Oklahoma 74142
(Address of principal executive offices) (Zip Code)
-----------
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 9th day of April, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
------------------------------
L. O'Brien
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin...................................... $ 13,915
Interest-bearing balances.............................. 7,805
Securities:.................................................
Held to maturity securities................................. 1,429
Available for sale securities............................... 56,327
Federal funds sold and securities purchased under
agreements to resell................................... 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve...... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve.................................. 128,384
Trading Assets............................................... 48,949
Premises and fixed assets (including capitalized
leases)................................................. 3,095
Other real estate owned...................................... 239
Investments in unconsolidated subsidiaries and
associated companies.................................... 199
Customers' liability to this bank on acceptances
outstanding............................................. 1,209
Intangible assets............................................ 2,081
Other assets................................................. 11,352
--------
TOTAL ASSETS................................................. $296,717
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices.................................................. $105,879
Noninterest-bearing ...............................$39,175
Interest-bearing .................................. 66,704
In foreign offices, Edge and Agreement, -------
subsidiaries and IBF's............................................... 79,294
Noninterest-bearing ................................ 4,082
Interest-bearing ...................................75,212
Federal funds purchased and securities sold under agree-
ments to repurchase................................................... 32,546
Demand notes issued to the U.S. Treasury.............................. 629
Trading liabilities................................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less....................... 4,478
With a remaining maturity of more than one year
through three years............................................ 213
With a remaining maturity of more than three years............. 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures..................................... 5,408
Other liabilities..................................................... 10,855
TOTAL LIABILITIES..................................................... 277,433
-------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock......................................................... 1,211
Surplus (exclude all surplus related to preferred stock)............ 11,016
Undivided profits and capital reserves............................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities..................................... 279
Cumulative foreign currency translation adjustments.................. 16
TOTAL EQUITY CAPITAL................................................. 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL................................. $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.2
--------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
----------------------------------------
Vintage Petroleum, Inc.
(Exact name of obligor as specified in its charter)
Delaware 73-1182669
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4200 One Williams Center
Tulsa, Oklahoma 74142
(Address of principal executive offices) (Zip Code)
---------------
Junior Subordinated Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 9th day of April, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
------------------------------
L. O'Brien
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin........................................... $ 13,915
Interest-bearing balances................................... 7,805
Securities:......................................................
Held to maturity securities...................................... 1,429
Available for sale securities.................................... 56,327
Federal funds sold and securities purchased under
agreements to resell........................................ 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve......... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve..................................... 128,384
Trading Assets.................................................. 48,949
Premises and fixed assets (including capitalized
leases).................................................... 3,095
Other real estate owned......................................... 239
Investments in unconsolidated subsidiaries and
associated companies....................................... 199
Customers' liability to this bank on acceptances
outstanding................................................ 1,209
Intangible assets............................................... 2,081
Other assets.................................................... 11,352
--------
TOTAL ASSETS.................................................... $296,717
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices........................................... $105,879
Noninterest-bearing ...........................$39,175
Interest-bearing .............................. 66,704
In foreign offices, Edge and Agreement, -------
subsidiaries and IBF's........................................ 79,294
Noninterest-bearing .......................... $ 4,082
Interest-bearing ...............................75,212
Federal funds purchased and securities sold under agree-
ments to repurchase............................................. 32,546
Demand notes issued to the U.S. Treasury........................ 629
Trading liabilities............................................. 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less................. 4,478
With a remaining maturity of more than one year
through three years...................................... 213
With a remaining maturity of more than three years............ 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures............................... 5,408
Other liabilities............................................... 10,855
TOTAL LIABILITIES............................................... 277,433
--------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock.................................................... 1,211
Surplus (exclude all surplus related to preferred stock)....... 11,016
Undivided profits and capital reserves.......................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities................................ 279
Cumulative foreign currency translation adjustments............. 16
TOTAL EQUITY CAPITAL............................................ 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL............................ $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<PAGE>
EXHIBIT 25.3
-------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Vintage Petroleum Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4200 One Williams Center
Tulsa, Oklahoma 74142
(Address of principal executive offices) (Zip Code)
-----------
Preferred Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 9th day of April, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
-------------------------------------
L. O'Brien
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................. $ 13,915
Interest-bearing balances......................... 7,805
Securities:........................................
Held to maturity securities........................ 1,429
Available for sale securities...................... 56,327
Federal funds sold and securities purchased under
agreements to resell.............................. 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve............. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve............................ 128,384
Trading Assets..................................... 48,949
Premises and fixed assets (including capitalized
leases)........................................... 3,095
Other real estate owned............................ 239
Investments in unconsolidated subsidiaries and
associated companies.............................. 199
Customers' liability to this bank on acceptances
outstanding....................................... 1,209
Intangible assets.................................. 2,081
Other assets....................................... 11,352
--------
TOTAL ASSETS....................................... $296,717
========
</TABLE>
-4-
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices..................................................... $105,879
Noninterest-bearing ..................................... $39,175
Interest-bearing ........................................ 66,704
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................................. 79,294
Noninterest-bearing ...................................... $ 4,082
Interest-bearing ......................................... 75,212
Federal funds purchased and securities sold under agree-
ments to repurchase....................................................... 32,546
Demand notes issued to the U.S. Treasury.................................. 629
Trading liabilities....................................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less........................... 4,478
With a remaining maturity of more than one year
through three years................................................ 213
With a remaining maturity of more than three years................. 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures......................................... 5,408
Other liabilities......................................................... 10,855
TOTAL LIABILITIES......................................................... 277,433
--------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock.............................................................. 1,211
Surplus (exclude all surplus related to preferred stock)................. 11,016
Undivided profits and capital reserves.................................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities.......................................... 279
Cumulative foreign currency translation adjustments....................... 16
TOTAL EQUITY CAPITAL...................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL...................................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
<PAGE>
EXHIBIT 25.4
--------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITYC
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2)
--------
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-2760086
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
------------------------------------------
Vintage Petroleum, Inc.
(Exact name of obligor as specified in its charter)
Delaware 73-1182669
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
4200 One Williams Center
Tulsa, Oklahoma 74142
(Address of principal executive offices) (Zip Code)
------------
Preferred Securities Guarantee
(Vintage Petroleum Capital Trust I)
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 9th day of April, 1999.
THE CHASE MANHATTAN BANK
By /s/ L. O'Brien
---------------------------------------
L. O'Brien
Vice President
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1998, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin................................. $ 13,915
Interest-bearing balances......................... 7,805
Securities:........................................
Held to maturity securities........................ 1,429
Available for sale securities...................... 56,327
Federal funds sold and securities purchased under
agreements to resell.............................. 21,733
Loans and lease financing receivables:
Loans and leases, net of unearned income $131,095
Less: Allowance for loan and lease losses 2,711
Less: Allocated transfer risk reserve............. 0
--------
Loans and leases, net of unearned income,
allowance, and reserve............................ 128,384
Trading Assets..................................... 48,949
Premises and fixed assets (including capitalized
leases)........................................... 3,095
Other real estate owned............................ 239
Investments in unconsolidated subsidiaries and
associated companies.............................. 199
Customers' liability to this bank on acceptances
outstanding....................................... 1,209
Intangible assets.................................. 2,081
Other assets....................................... 11,352
--------
TOTAL ASSETS....................................... $296,717
========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices..................................................... $105,879
Noninterest-bearing ......................................... $39,175
Interest-bearing ............................................ 66,704
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................................. 79,294
Noninterest-bearing ......................................... $ 4,082
Interest-bearing ............................................ 75,212
Federal funds purchased and securities sold under agree-
ments to repurchase....................................................... 32,546
Demand notes issued to the U.S. Treasury.................................. 629
Trading liabilities....................................................... 36,807
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less........................... 4,478
With a remaining maturity of more than one year
through three years................................................ 213
With a remaining maturity of more than three years...................... 115
Bank's liability on acceptances executed and outstanding 1,209
Subordinated notes and debentures......................................... 5,408
Other liabilities......................................................... 10,855
TOTAL LIABILITIES......................................................... 277,433
--------
<CAPTION>
EQUITY CAPITAL
<S> <C>
Perpetual preferred stock and related surplus 0
Common stock.............................................................. 1,211
Surplus (exclude all surplus related to preferred stock)................. 11,016
Undivided profits and capital reserves.................................... 6,762
Net unrealized holding gains (losses)
on available-for-sale securities.......................................... 279
Cumulative foreign currency translation adjustments....................... 16
TOTAL EQUITY CAPITAL...................................................... 19,284
--------
TOTAL LIABILITIES AND EQUITY CAPITAL...................................... $296,717
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
