<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
Quarterly Report Under Section 13 or 15(d)
[X] of the Securities Exchange Act of 1934
For the Quarterly Period Ended September 30, 1997 or
Transition Report Pursuant to Section 13 or 15(d)
[ ] of the Securities Act of 1934 for the
Transition Period from __________ to __________
COMMISSION FILE NO. 1-10762
----------
BENTON OIL AND GAS COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 77-0196707
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
1145 EUGENIA PLACE, SUITE 200
CARPINTERIA, CALIFORNIA 93013
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (805) 566-5600
----------
Indicate by check mark whether the
Registrant (1) has filed all reports
required to be filed by Section 13 or
15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or
for such shorter period that the
Registrant was required to file such
reports), and (2) has been subject to
such filing requirements for the past 90
days.
Yes X No
--- ---
At November 10, 1997, 29,442,507 shares
of the Registrant's Common Stock were
outstanding.
<PAGE> 2
2
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
Page
----
<TABLE>
<S> <C> <C>
PART I. FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
Consolidated Balance Sheets at September 30, 1997
and December 31, 1996 (Unaudited)..............................3
Consolidated Statements of Income for the Three
Months Ended September 30, 1997 and 1996 (Unaudited)...........4
Consolidated Statements of Income for the Nine
Months Ended September 30, 1997 and 1996 (Unaudited) ..........5
Consolidated Statements of Cash Flows for the Nine
Months Ended September 30, 1997 and 1996 (Unaudited)...........6
Notes to Consolidated Financial Statements..............................8
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.......................................15
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS 21
Item 2. CHANGES IN SECURITIES.....................................................21
Item 3. DEFAULTS UPON SENIOR SECURITIES...........................................21
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.......................21
Item 5. OTHER INFORMATION ........................................................21
Item 6. EXHIBITS AND REPORTS ON FORM 8-K..........................................21
Signatures....................................................................................22
</TABLE>
<PAGE> 3
3
PART I. FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, unaudited)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
--------- ---------
ASSETS
- ------
<S> <C> <C>
CURRENT ASSETS:
Cash and cash equivalents $ 32,955 $ 32,432
Restricted cash 4,548 4,500
Marketable securities 51,159 52,004
Accounts receivable:
Accrued oil and gas revenue 45,200 50,137
Joint interest and other 7,206 9,860
Prepaid expenses and other 1,807 1,591
--------- ---------
TOTAL CURRENT ASSETS 142,875 150,524
RESTRICTED CASH 69,516 68,000
OTHER ASSETS 7,128 6,186
PROPERTY AND EQUIPMENT:
Oil and gas properties (full cost method - costs of
$31,881 and $25,987 excluded from
amortization in 1997 and 1996, respectively) 338,754 259,622
Furniture and fixtures 5,310 4,283
--------- ---------
344,064 263,905
Accumulated depletion and depreciation (85,487) (52,870)
--------- ---------
258,577 211,035
--------- ---------
$ 478,096 $ 435,745
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
- ------------------------------------
CURRENT LIABILITIES:
Accounts payable - trade and other $ 47,052 $ 43,257
Accrued interest payable, payroll and related taxes 9,401 5,975
Income taxes payable 6,896 889
Short term borrowings 1,530 853
Current portion of long term debt 12 1,133
--------- ---------
TOTAL CURRENT LIABILITIES 64,891 52,107
DEFERRED INCOME TAXES 21,303 16,679
LONG TERM DEBT 176,489 175,028
MINORITY INTEREST 22,617 17,032
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY
Preferred stock, par value $0.01 a share;
authorized 5,000 shares; outstanding, none
Common stock, par value $0.01 a share;
authorized 40,000 shares; issued 29,170 and
28,898 shares at September 30, 1997 and
December 31, 1996, respectively 292 289
Additional paid-in capital 143,256 140,648
Retained earnings 49,947 33,962
Treasury stock, at cost, 50 shares in 1997 (699) --
--------- ---------
TOTAL STOCKHOLDERS' EQUITY 192,796 174,899
--------- ---------
$ 478,096 $ 435,745
========= =========
</TABLE>
See notes to consolidated financial statements.
<PAGE> 4
4
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data, unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30,
--------------------------------
1997 1996
------- -------
<S> <C> <C>
REVENUES
Oil and gas sales $41,393 $38,046
Gain on exchange rates 751 371
Investment earnings and other 3,044 2,484
------- -------
45,188 40,901
------- -------
EXPENSES
Lease operating costs and production taxes 12,698 6,017
Depletion, depreciation and amortization 12,622 8,011
General and administrative 5,833 3,646
Interest 5,450 5,135
------- -------
36,603 22,809
------- -------
INCOME BEFORE INCOME TAXES
AND MINORITY INTEREST 8,585 18,092
INCOME TAXES 4,492 6,401
------- -------
INCOME BEFORE MINORITY INTEREST 4,093 11,691
MINORITY INTEREST 1,224 2,878
------- -------
NET INCOME $ 2,869 $ 8,813
======= =======
INCOME PER COMMON SHARE:
$ 0.09 $ 0.29
======= =======
Primary
Fully Diluted $ 0.09 $ 0.29
======= =======
</TABLE>
See notes to consolidated financial statements.
<PAGE> 5
5
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(In thousands, except per share data, unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
1997 1996
-------- ---------
<S> <C> <C>
REVENUES
Oil and gas sales $121,869 $ 102,417
Gain on sale of properties 7,153
Gain on exchange rates 1,712 2,027
Investment earnings and other 8,883 4,132
-------- ---------
132,464 115,729
-------- ---------
EXPENSES
Lease operating costs and production taxes 29,878 15,273
Depletion, depreciation and amortization 32,662 22,810
General and administrative 16,726 12,597
Interest 16,721 10,776
Partnership exchange expenses 2,140
-------- ---------
95,987 63,596
-------- ---------
INCOME BEFORE INCOME TAXES
AND MINORITY INTEREST 36,477 52,133
INCOME TAXES 14,908 15,843
-------- ---------
INCOME BEFORE MINORITY INTEREST 21,569 36,290
MINORITY INTEREST 5,584 7,277
-------- ---------
15,985 29,013
INCOME BEFORE EXTRAORDINARY CHARGE
EXTRAORDINARY CHARGE FOR EARLY RETIREMENT OF
DEBT, NET OF TAX BENEFIT OF $879 10,075
-------- ---------
NET INCOME $ 15,985 $ 18,938
======== =========
INCOME (LOSS) PER COMMON SHARE:
Primary:
Income before extraordinary charge $ 0.52 $ 1.00
Extraordinary charge - (0.35)
-------- ---------
Net Income $ 0.52 $ 0.65
======== =========
Fully Diluted:
Income before extraordinary charge $ 0.51 $ 0.96
Extraordinary charge - (0.33)
-------- ---------
Net Income $ 0.51 $ 0.63
======== =========
</TABLE>
See notes to consolidated financial statements.
<PAGE> 6
6
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands, unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
1997 1996
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 15,985 $ 18,938
Adjustments to reconcile net income to net cash
provided by operating activities:
Depletion, depreciation and amortization 32,662 22,810
Amortization of financing costs 990 397
(Gain) loss on disposition of assets 4 (6,928)
Partnership exchange expenses 2,140
Minority interest in undistributed earnings of subsidiary 5,585 7,277
Extraordinary charge for early retirement of debt 10,075
Deferred income taxes 4,624 -
Changes in operating assets and liabilities:
Accounts receivable 7,591 (19,198)
Prepaid expenses and other (216) (121)
Accounts payable 5,265 5,115
Accrued interest and other liabilities 3,426 6,587
Income taxes payable 6,007 13,322
--------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES 81,923 60,414
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Proceeds from sale of property and equipment 34,638
Additions of property and equipment (80,205) (59,275)
Increase in restricted cash (7,664) (68,000)
Decrease in restricted cash 6,100 19,250
Purchase of marketable securities (48,147) (132,422)
Maturities of marketable securities 48,992 58,292
Distributions from limited partnerships 277
--------- ---------
NET CASH USED IN INVESTING ACTIVITIES (80,924) (147,240)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of stock options and warrants 2,611 13,440
Proceeds from issuance of notes payable 1,190 180,024
Payments on short term borrowings and notes payable (1,643) (73,991)
Prepayment premiums on debt retirement (10,632)
Increase in other assets (1,935) (5,548)
Treasury stock (699) -
--------- ---------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES (476) 103,293
--------- ---------
NET INCREASE IN CASH AND CASH EQUIVALENTS 523 16,467
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 32,432 6,180
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 32,955 $ 22,647
========= =========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for interest expense $ 11,818 $ 4,340
========= =========
Cash paid during the period for income taxes $ 3,397 $ 2,201
========= =========
</TABLE>
(continued)
<PAGE> 7
7
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES:
During the nine months ended September 30, 1997, certain trade payables of
GEOILBENT were converted to long term debt. The Company's proportionate share of
the converted payables is $1,470,079.
During the nine months ended September 30, 1996, $3,226,000 principal amount of
the Company's 8% convertible notes and $4,310,000 principal amount of the
Company's 8% convertible debentures were retired upon conversion into 275,081
and 435,872 shares of the Company's common stock, respectively.
During the nine months ended September 30, 1996, the Company acquired the
partners' interests in each of the three limited partnerships sponsored by the
Company in exchange for an aggregate of 168,362 shares of the Company's common
stock and warrants to purchase 587,783 shares of common stock at $11.00 per
share, with a total value of $3,996,601.
See notes to consolidated financial statements.
<PAGE> 8
8
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
------------------------------------------
NINE MONTHS ENDED SEPTEMBER 30, 1997 (UNAUDITED)
NOTE 1 - ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION
Benton Oil and Gas Company (the "Company") engages in the exploration,
development, production and management of oil and gas properties.
The Company and its former subsidiary, Benton Oil and Gas Company of Louisiana,
participated as the managing general partner of three oil and gas limited
partnerships formed during 1989 through 1991. Under the provisions of the
limited partnership agreements, the Company received compensation as stipulated
therein, and functioned as an agent for the partnerships to arrange for the
management, drilling, and operation of properties, and assumed customary
contingent liabilities for partnership obligations. In January 1996, the Company
acquired the limited partnership interests for an aggregate of 168,362 shares of
common stock and warrants to purchase 587,783 shares of common stock at $11 per
share, and liquidated the partnerships (see Note 2).
The consolidated financial statements include the accounts of the Company and
its subsidiaries. The Company's investment in the Russia joint venture
("GEOILBENT") is proportionately consolidated based on the Company's ownership
interest. GEOILBENT (owned 34% by the Company) has been included in the
consolidated financial statements based on a fiscal period ending September 30.
All material intercompany profits, transactions and balances have been
eliminated.
INTERIM REPORTING
In the opinion of the Company, the accompanying unaudited consolidated financial
statements contain all adjustments (consisting of only normal recurring
accruals) necessary to present fairly the financial position as of September 30,
1997, and the results of operations for the three and nine month periods ended
September 30, 1997 and 1996. The unaudited financial statements are presented in
accordance with the requirements of Form 10-Q and do not include all disclosures
normally required by generally accepted accounting principles. Reference should
be made to the Company's consolidated financial statements and notes thereto
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1996 for additional disclosures, including a summary of the Company's
accounting policies.
The results of operations for the nine month period ended September 30, 1997 are
not necessarily indicative of the results to be expected for the full year.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
MARKETABLE SECURITIES
Marketable securities are carried at amortized cost. The marketable securities
the Company may purchase are limited to those defined as Cash Equivalents in the
indenture for its senior unsecured notes. Cash Equivalents may be comprised of
high-grade debt instruments, demand or time deposits, bankers' acceptances and
certificates of deposit or acceptances of large U.S. financial institutions and
commercial paper of highly rated U.S. corporations, all having maturities of no
more than 180 days. The Company's marketable securities at cost, which
approximates fair value, at September 30, 1997, consisted of $13.3 million in
treasury securities and agreements to repurchase
<PAGE> 9
9
treasury securities, $29.9 million in commercial paper, $4.0 million in bankers'
acceptances and $4.0 million in certificates of deposit and at December 31,
1996, consisted of $26.2 million in treasury securities and agreements to
repurchase treasury securities, $19.8 million in commercial paper and $6.0
million in bankers' acceptances.
EARNINGS PER SHARE
Earnings per common share are computed by dividing net income by the weighted
average number of common and common equivalent shares outstanding. Common
equivalent shares are shares which may be issuable upon exercise of outstanding
stock options and warrants. Total weighted average common and common equivalent
shares used to calculate earnings per common share were (in thousands):
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Primary shares 30,646 30,324 30,777 29,126
Fully diluted shares 31,101 30,470 31,096 30,206
</TABLE>
In February 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 128 ("SFAS 128") "Earnings per
Share" which will be effective for the Company beginning December 31, 1997. SFAS
128 replaces the presentation of primary earnings per share with a presentation
of basic earnings per share based upon the weighted average number of common
shares for the period. It also requires dual presentation of basic and diluted
earnings per share for companies with complex capital structures. Had earnings
per share been determined consistent with SFAS 128, basic and diluted earnings
per share would have been:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER
1997 1996
----------------------------------- -------------------------------------
WEIGHTED AVERAGE WEIGHTED AVERAGE
SHARES NET INCOME PER SHARES NET INCOME PER
(IN THOUSANDS) SHARE (IN THOUSANDS) SHARE
---------------- -------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Basic 29,094 $0.10 27,559 $0.32
Diluted 30,646 $0.09 30,358 $0.29
</TABLE>
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
1997 1996
----------------------------------- -------------------------------------
WEIGHTED AVERAGE WEIGHTED AVERAGE
SHARES NET INCOME PER SHARES NET INCOME PER
(IN THOUSANDS) SHARE (IN THOUSANDS) SHARE
---------------- -------------- ----------------- ---------------
<S> <C> <C> <C> <C>
Basic 29,025 $0.55 26,741 $0.71
Diluted 30,777 $0.52 29,419 $0.64
</TABLE>
TREASURY STOCK
In June 1997, the Board of Directors instituted a treasury stock repurchase
program under which the Company is authorized to purchase up to 1,500,000 shares
of its common stock. The shares will be used for re-issuance in connection with
the Company's employee stock option plan, treasury stock or for other corporate
purposes to be determined in the future. During the nine month period ended
September 30, 1997, the Company repurchased 50,000 shares at an average price of
$13.99 per share.
<PAGE> 10
10
PROPERTY AND EQUIPMENT
The Company follows the full cost method of accounting for oil and gas
properties. Accordingly, all costs associated with the acquisition, exploration,
and development of oil and gas reserves are capitalized as incurred, including
exploration overhead of $1,322,524 and $1,095,021 for the nine months ended
September 30, 1997 and 1996, respectively. Only overhead which is directly
identified with acquisition, exploration or development activities is
capitalized. All costs related to production, general corporate overhead and
similar activities are expensed as incurred. The costs of oil and gas properties
are accumulated in cost centers on a country by country basis, subject to a cost
center ceiling (as defined by the Securities and Exchange Commission).
All capitalized costs of oil and gas properties (excluding unevaluated property
acquisition and exploration costs) and the estimated future costs of developing
proved reserves, are depleted over the estimated useful lives of the properties
by application of the unit-of-production method using only proved oil and gas
reserves. Excluded costs attributable to the Venezuela, Russia, China, Jordan
and other cost centers at September 30, 1997 were $11,217,650, $809,204,
$16,182,295, $940,591, and $2,731,703, respectively. Excluded costs attributable
to the Venezuela, Russia, China and other cost centers at December 31, 1996 were
$8,935,183, $809,204, $15,385,043 and $857,851, respectively. Depletion expense
attributable to the Venezuela and Russia cost centers for the nine months ended
September 30, 1997, was $29,674,340 and $2,354,940 ($2.63 and $3.53 per
equivalent barrel), respectively. Depletion expense attributable to the
Venezuela, Russia and other cost centers for the nine months ended September 30,
1996, was $18,870,995, $1,915,984 and $1,659,859 ($2.09, $3.34 and $6.73 per
equivalent barrel), respectively. Depreciation of furniture and fixtures is
computed using the straight-line method, with depreciation rates based upon the
estimated useful life applied to the cost of each class of property.
Depreciation expense was $621,669 and $362,209 for the nine months ended
September 30, 1997 and 1996, respectively.
RECLASSIFICATIONS
Certain items in 1996 have been reclassified to conform to the 1997 financial
statement presentation.
NEW ACCOUNTING PRONOUNCEMENTS
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
130 ("SFAS 130"), Reporting Comprehensive Income. This statement requires that
all items that are required to be recognized under accounting standards as
components of comprehensive income be reported in a financial statement that is
displayed with the same prominence as other financial statements. SFAS 130 will
be adopted by the Company for the year ended December 31, 1998. Prior period
financial statements provided for comparative purposes will be reclassified, as
required. This statement has no effect on financial statements traditionally
presented by the Company, but increases required disclosures.
In June 1997, the FASB issued Statement of Financial Accounting Standards No.
131 ("SFAS 131"), Disclosures about Segments of an Enterprise and Related
Information. The statement requires the Company to report income/loss, revenue,
expense and assets by business segment including information regarding the
revenues derived from specific products and services and about the countries in
which the Company is operating. The Statement also requires that the Company
report descriptive information about the way that operating segments were
determined, the products and services provided by the operating segments,
differences between the measurements used in reporting segment information and
those used in the Company's general-purpose financial statements, and changes in
the measurement of segment amounts from period to period. SFAS 131 will be
adopted by the Company for the year ended December 31, 1998.
<PAGE> 11
11
NOTE 2 - ACQUISITIONS AND SALES
In January 1996, the Company completed an exchange offer under which it issued
an aggregate of 168,362 shares of common stock and warrants to purchase 587,783
shares of common stock at $11 per share in exchange for all outstanding limited
partnership interests in the three remaining limited partnerships sponsored by
the Company. The shares of common stock were valued at $1.9 million (based upon
the current market price at the time of the offer), which was allocated to oil
and gas properties. Substantially all of the oil and gas properties were
immediately sold at their approximate book value. The warrants, issued as an
inducement to the participants to accept the exchange offer, were valued at
$3.64 per warrant (an aggregate of $2.1 million, which was charged to expense in
1996).
In March 1997, the Company signed an agreement to acquire an interest in, and
serve as operator for, three California state offshore oil and gas leases. As
operator of the leases, the Company anticipates drilling one well during the
fourth quarter of 1997, which would require an outlay of approximately $4
million consisting of its initial contribution to the project and its
proportionate share of the well cost.
In August 1997, the Company acquired the rights to a production sharing
agreement ("PSA") with Jordan's Natural Resources Authority to explore, develop
and produce the Sirhan block in southeastern Jordan. Under the terms of the PSA,
the Company is obligated to make certain capital and operating expenditures in
three phases over eight years. The Company is obligated to spend $5.1 million in
the first exploration phase which is expected to last approximately two years.
If the Company ultimately elects to continue through phases two and three, it
would be obligated to spend an additional $18 million over the succeeding six
years.
NOTE 3 - LONG TERM DEBT
Long term debt consists of the following (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1997 1996
------------ ----------
<S> <C> <C>
Senior unsecured notes with interest at 11.625%
See description below $125,000 $125,000
Benton-Vinccler credit facility with interest at
LIBOR plus 6%. Collateralized by a time deposit
of the Company earning approximately LIBOR plus
5.75%. See description below 50,000 50,000
Bank financing with interest at LIBOR plus
7.5% to 8.0%. Secured by certain GEOILBENT
oil export proceeds. See description below 1,105
Other 1,501 56
-------- --------
176,501 176,161
Less current portion 12 1,133
-------- --------
$176,489 $175,028
======== ========
</TABLE>
In May 1996, the Company issued $125 million in 11.625% senior unsecured notes
due May 1, 2003. Interest on the notes is due May 1 and November 1 of each year.
The indenture agreement provides for certain limitations on liens, additional
indebtedness, certain investment and capital expenditures, dividends, mergers
and sales of assets. At September 30, 1997, the Company was in compliance with
all covenants of the indenture.
In August 1996, Benton-Vinccler entered into a $50 million, long term credit
facility with Morgan Guaranty Trust Company of New York ("Morgan Guaranty") to
repay the balance outstanding under a short term credit facility and to repay
certain advances received from the Company. The credit facility is
collateralized in full by a time deposit of the Company, bears interest at LIBOR
plus 6% and matures in August 2000. The Company will receive interest on its
time deposit and a security fee on the outstanding principal of the loan, for a
combined total of approximately LIBOR plus 5.75%. The loan arrangement contains
no restrictive covenants and no financial ratio covenants.
In December 1995, GEOILBENT signed a credit facility with International Moscow
Bank ("IMB") for $5 million, payable over 17 months with interest at LIBOR plus
8.0%. As of September 30, 1997 the facility had been repaid and at December 31,
1996, the Company's proportionate share of the outstanding balance was $1.1
million.
<PAGE> 12
12
NOTE 4 - COMMITMENTS AND CONTINGENCIES
In May 1996, the Company entered into an agreement with Morgan Guaranty which
provides for an $18 million cash collateralized 5-year letter of credit to
secure the Company's performance of the minimum exploration work program
required in the Delta Centro Block in Venezuela.
In the normal course of its business, the Company may periodically become
subject to actions threatened or brought by its investors or partners in
connection with the operation or development of its properties or the sale of
securities. Prior to 1992, the Company was engaged in the formation and
operation of oil and gas limited partnership interests. In 1992, the Company
ceased raising funds through such sales. Certain limited partners in limited
partnerships sponsored by the Company have brought an action against the Company
in connection with the Company's operation of the limited partnerships as
managing general partner. The plaintiffs seek actual and punitive damages for
alleged actions and omissions by the Company in operating the partnerships and
alleged misrepresentations made by the Company in selling the limited
partnership interests. In May 1995, the Company agreed to a binding arbitration
proceeding with respect to such claims. In April 1997, the plaintiffs commenced
discovery. The Company intends to vigorously defend this action and does not
believe the claims raised are meritorious. However, new developments could alter
this conclusion at any time. The Company will be forced to expend time and
financial resources to defend or resolve any such matters. The Company is also
subject to ordinary litigation that is incidental to its business. None of the
above matters are expected to have a material adverse effect on the Company's
financial statements.
The Company has entered into a lease agreement for office space currently under
construction in Carpinteria, California. It is anticipated that the building
will be ready for occupancy in late 1998. The Company will lease the entire
building (50,000 square feet) for $72,500 per month, subject to adjustments for
tenant improvements. The Company intends to sublet a portion of the building
which would not be immediately needed for operations.
NOTE 5 - TAXES ON INCOME
At December 31, 1996, the Company had, for federal income tax purposes,
operating loss carryforwards of approximately $71 million, expiring in the years
2003 through 2011. If the carryforwards are ultimately realized, approximately
$9 million will be credited to additional paid-in capital for tax benefits
associated with deductions for income tax purposes related to stock options.
The Company has not provided for United States income taxes on $65 million of
foreign subsidiaries' unremitted earnings at December 31, 1996 which are
expected to be reinvested indefinitely. It is not practicable to determine the
amount of income taxes that might be payable if such earnings are ultimately
repatriated.
NOTE 6 - RUSSIA OPERATIONS
The European Bank for Reconstruction and Development ("EBRD") and IMB have
agreed to lend a total of $65 million to GEOILBENT (owned 34% by the Company)
under parallel reserve-based, non-recourse loan agreements ("GEOILBENT Credit
Facility"). Initial funding of $10.2 million occurred in October 1997, upon
satisfaction of certain conditions precedent. The proceeds from the loans will
be used by GEOILBENT to develop the North Gubkinskoye and Prisklonovoye fields
in West Siberia, Russia. Additional borrowings will be based on achieving
certain reserve and production milestones.
For the period January 1 through June 30, 1996, GEOILBENT was subject to the
Russian export tariff. In July 1996, such oil export tariffs were terminated.
Excise, pipeline and other taxes continue to be levied on all oil producers and
certain exporters. The Russian regulatory environment continues to be volatile
and the Company is unable to predict the impact of taxes, duties and other
burdens for the future.
<PAGE> 13
13
NOTE 7 - VENEZUELA OPERATIONS
On July 31, 1992, the Company and its partner, Venezolana de Inversiones y
Construcciones Clerico, C.A. ("Vinccler"), signed an operating service agreement
to reactivate and further develop three Venezuelan oil fields with Lagoven,
S.A., an affiliate of the national oil company, Petroleos de Venezuela, S.A
("PDVSA"). The operating service agreement covers the Uracoa, Bombal and
Tucupita fields that comprise the South Monagas Unit ("Unit"). Under the terms
of the operating service agreement, Benton-Vinccler, a corporation owned 80% by
the Company and 20% by Vinccler, is a contractor for Lagoven and is responsible
for overall operations of the Unit, including all necessary investments to
reactivate and develop the fields comprising the Unit. Benton-Vinccler receives
an operating fee in U.S. dollars deposited into a U.S. commercial bank account
for each barrel of crude oil produced (subject to periodic adjustments to
reflect changes in a special energy index of the U.S. Consumer Price Index) and
is reimbursed according to a prescribed formula in U.S. dollars for its capital
costs, provided that such operating fee and cost recovery fee cannot exceed the
maximum dollar amount per barrel set forth in the agreement (which amount is
periodically adjusted to reflect changes in the average of certain world crude
oil prices). The Venezuelan government maintains full ownership of all
hydrocarbons in the fields.
In January 1996, the Company and its bidding partners, Louisiana Land &
Exploration ("LL&E"), which was recently acquired by Burlington Resources Inc.,
and Norcen Energy Resources, LTD ("Norcen") were awarded the right to explore
and develop the Delta Centro Block in Venezuela. The contract requires a minimum
exploration work program consisting of completing a 1,300 kilometer seismic
survey and drilling three wells to depths of 12,000 to 18,000 feet within five
years. PDVSA estimates that this minimum exploration work program will cost $60
million and requires that the Company, LL&E and Norcen each post a performance
surety bond or standby letter of credit for its pro rata share of the estimated
work commitment expenditures. The Company has a 30% interest in the exploration
venture, with LL&E and Norcen each owning a 35% interest. Under the terms of the
operating agreement, which establishes the management company of the project,
LL&E will be the operator of the field and, therefore, the Company will not be
able to exercise control of the operations of the venture. Corporation
Venezolana del Petroleo, S.A., an affiliate of PDVSA, has a 35% interest in the
management company, which dilutes the voting power of the partners on a pro rata
basis. In July 1996, formal agreements were finalized and executed and the
Company posted an $18 million standby letter of credit, which is collateralized
in full by a time deposit of the Company, to secure its 30% share of the minimum
exploration work program (see Note 4). As of September 30, 1997, the Company's
share of expenditures to date was $2.9 million.
NOTE 8 - CHINA OPERATIONS
In December 1996, the Company acquired Crestone Energy Corporation, a privately
held corporation headquartered in Denver, Colorado, for 628,142 shares of common
stock and options to purchase 107,571 shares of the Company's common stock at
$7.00 per share, valued at $14.6 million. Crestone's primary asset is a large
undeveloped acreage position in the South China Sea, under a petroleum contract
with China National Offshore Oil Corporation ("CNOOC") of the People's Republic
of China for an area known as Wan'An Bei, WAB-21. Crestone will, as a wholly
owned subsidiary of the Company, continue as the operator and contractor of
WAB-21. Crestone has submitted an exploration program and budget to CNOOC for
1997. However, due to certain territorial disputes over the sovereignty of the
contract area, it is unclear when such program will commence.
NOTE 9 - JORDAN OPERATIONS
In August 1997, the Company acquired the rights to a PSA with Jordan's Natural
Resources Authority to explore, develop and produce the Sirhan block in
southeastern Jordan. The Sirhan block consists of approximately 1.2 million
acres (4,827 square kilometers) and is located in the Sirhan basin adjacent to
the Saudi Arabia border. Under the terms of the PSA, the Company is obligated to
make certain capital and operating expenditures in up to three phases over eight
years. The Company is obligated to spend $5.1 million in the first exploration
phase, which is expected to last approximately two years. If the Company
ultimately elects to continue through phases two and three, it would be
obligated to spend an additional $18 million over the succeeding six years.
<PAGE> 14
14
NOTE 10 - RELATED PARTY TRANSACTIONS
During 1996 and 1997, the Company made loans to Mr. A.E. Benton, its Chief
Executive Officer, Mr. M.B. Wray, its President, and Mr. J.M. Whipkey, its Chief
Financial Officer, each loan bearing interest at 6%. At December 31, 1996, the
balances owed to the Company by Mr. Benton and Mr. Wray were $277,854 and
$619,430, respectively. At September 30, 1997, the balances owed to the Company
by Mr. Benton, Mr. Wray and Mr. Whipkey were $974,388, $646,356 and $501,068,
respectively.
NOTE 11 - SUBSEQUENT EVENTS
In November 1997, the Company issued $115 million in 9.375% senior unsecured
notes due November 1, 2007. Interest on the notes is due May 1 and November 1 of
each year, beginning May 1, 1998. The Company subsequently repurchased $10
million of the notes at their face value. The indenture agreement provides for
certain limitations on liens, additional indebtedness, certain investment and
capital expenditures, dividends, mergers and sales of assets. The proceeds from
the notes will be used for general corporate purposes, including the Company's
ongoing exploration and development programs. Pending such use, the net proceeds
will be invested in Cash Equivalents as defined in the indenture (see Note 1).
In October 1997, the Company signed a farmout agreement with Shell Exploration
(China) Limited ("Shell") whereby the Company will acquire a 50% participation
interest in Shell's Liaohe area onshore exploration project in northeast China,
subject to approval of such assignment by the Ministry of Foreign Trade and
Economic Cooperation of China. Shell holds a petroleum contract with China
National Petroleum Corporation ("CNPC") to explore and develop the deep rights
in the Qingshui Block, a 563 square kilometer area (approximately 140,000 acres)
in the delta of the Liaohe River. Shell will be the operator of the project. The
Company is required to pay to Shell 50% of Shell's costs to date, estimated to
be approximately $4.0 million ($2.0 million to the Company) and to pay 100% of
the costs for the phase one exploration period, with a maximum required
expenditure of $8.0 million. If the first phase of the exploration period
results in a commercial discovery and if the Company elects to continue to phase
two, then the Company will pay 100% of the costs of the second phase of the
exploration period, with a maximum required expenditure of $8.0 million. The
Company and Shell will be responsible for the costs of the third exploration
phase and the costs of development activities associated with any of the three
phases in proportion to their interests.
<PAGE> 15
15
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The Company cautions that any forward-looking statements (as such term is
defined in the Private Securities Litigation Reform Act of 1995) contained in
this report or made by management of the Company involve risks and uncertainties
and are subject to change based on various important factors. When used in this
report, the words budget, budgeted, anticipate, expect, believes, goals or
projects and similar expressions are intended to identify forward-looking
statements. In accordance with the provisions of the Private Securities
Litigation Reform Act of 1995, the Company cautions that important factors could
cause actual results to differ materially from those in the forward-looking
statements. Such factors include the Company's substantial concentration of
operations in Venezuela, the political and economic risks associated with
international operations, the anticipated future development costs for the
Company's undeveloped proved reserves, the risk that actual results may vary
considerably from reserve estimates, the dependence upon the abilities and
continued participation of certain key employees of the Company, the risks
normally incident to the operation and development of oil and gas properties and
the drilling of oil and gas wells, and the price for oil and natural gas, and
other risks indicated in filings with the Securities and Exchange Commission.
The following factors, among others, in some cases have affected and could cause
actual results and plans for future periods to differ materially from those
expressed or implied in any such forward-looking statements: fluctuations in oil
and gas prices, changes in operating costs, overall economic conditions,
political stability, acts of terrorism, currency and exchange risks, changes in
existing or potential tariffs, duties or quotas, availability of additional
exploration and development opportunities, availability of sufficient financing,
changes in weather conditions, and ability to hire, retain and train management
and personnel.
GENERAL
PRINCIPLES OF CONSOLIDATION AND ACCOUNTING METHODS
The Company has included the results of operations of Benton-Vinccler in its
consolidated statement of operations and has reflected the 20% ownership
interest of Vinccler as a minority interest. GEOILBENT has been included in the
consolidated financial statements based on a fiscal period ending September 30.
Results of operations reported in the first nine months of 1996 and 1997 for
Russia reflect the nine months ended June 30, 1996 and 1997, respectively. The
Company's investment in GEOILBENT is proportionately consolidated based on the
Company's ownership interest.
The Company follows the full-cost method of accounting for its investments in
oil and gas properties. The Company capitalizes all acquisition, exploration,
and development costs incurred. The Company accounts for its oil and gas
properties using cost centers on a country by country basis. Proceeds from sales
of oil and gas properties are credited to the full-cost pools. Capitalized costs
of oil and gas properties are amortized within the cost centers on an overall
unit-of-production method using proved oil and gas reserves as determined by
independent petroleum engineers. Costs amortized include all capitalized costs
(less accumulated amortization), the estimated future expenditures (based on
current costs) to be incurred in developing proved reserves, and estimated
dismantlement, restoration and abandonment costs. See Note 1 of Notes to
Consolidated Financial Statements.
The following discussion of the Company's results of operations for the nine
months ended September 30, 1997 and 1996 and financial condition at September
30, 1997 and December 31, 1996 should be read in conjunction with the Company's
Consolidated Financial Statements and related notes thereto included in PART I,
Item 1, "Financial Statements."
RESULTS OF OPERATIONS
The Company's results of operations for the three and nine months ended
September 30, 1997, reflected the results for Benton Vinccler, C.A. in
Venezuela. Oil sales revenues in Venezuela were higher in the first nine months
of 1997 compared to 1996 due to increases in oil production. However, during
1997 Benton-Vinccler realized a declining operating fee per barrel as a result
of declining world crude oil prices. Benton-Vinccler also experienced increased
operating expenses primarily in the areas of workovers, transportation and
chemical costs, and increased
<PAGE> 16
16
capital requirements for production facilities. The increased costs resulted in
increased per barrel lease operating, general and administrative and depletion
expenses and represented a higher percentage of oil sales revenues during the
period than in the prior period.
The following table presents selected expense items from the Company's
consolidated income statement items as a percentage of oil and gas sales:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30, NINE MONTHS ENDED SEPTEMBER 30,
1997 1996 1997 1996
------ ----- ----- -----
<S> <C> <C> <C> <C>
Lease Operating Costs and Production Taxes 30.7% 15.8% 24.5% 14.9%
Depletion, Depreciation and Amortization 30.5 21.1 26.8 22.3
General and Administrative 14.1 9.6 13.7 12.3
Interest 13.2 13.5 13.7 10.5
</TABLE>
THREE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
The Company had revenues of $45.2 million for the three months ended September
30, 1997. Expenses incurred during the period consisted of lease operating costs
and production taxes of $12.7 million, depletion, depreciation and amortization
expense of $12.6 million, general and administrative expense of $5.8 million,
interest expense of $5.5 million, income tax expense of $4.5 million and
minority interest of $1.2 million. Net income was $2.9 million or $0.09 per
share (fully diluted).
By comparison, the Company had revenues of $40.9 million for the three months
ended September 30, 1996. Expenses incurred during the period consisted of lease
operating costs and production taxes of $6.0 million, depletion, depreciation
and amortization expense of $8.0 million, general and administrative expense of
$3.7 million, interest expense of $5.1 million, income tax expense of $6.4
million and minority interest of $2.9 million. Net income was $8.8 million or
$0.29 per share (fully diluted).
Revenues increased $4.3 million, or 10.5%, during the three months ended
September 30, 1997 compared to the corresponding period of 1996 primarily due to
increased oil sales in Venezuela. Sales quantities for the three months ended
September 30, 1997 from Venezuela and Russia were 4,106,570 Bbl and 188,965 Bbl,
respectively, compared to 3,375,384 Bbl and 176,089 Bbl, respectively, for the
three months ended September 30, 1996. Prices for crude oil averaged $9.59 per
Bbl (pursuant to terms of an operating service agreement) from Venezuela and
$10.71 per Bbl from Russia for the three months ended September 30, 1997
compared to $10.84 per Bbl from Venezuela and $12.65 per Bbl from Russia for the
corresponding period of 1996. Revenues for the three months ended September 30,
1996 were reduced by a loss of $0.8 million related to a commodity hedge.
Investment earnings increased $0.5 million, or 20.0%, during the three months
ended September 30, 1997 compared to the three months ended September 30, 1996
due to higher average cash and marketable securities balances. Revenues for the
three months ended September 30, 1997 were increased by a foreign exchange gain
of $0.8 million compared to $0.4 million gain during the corresponding period of
1996.
Lease operating costs and production taxes increased $6.7 million, or 111.7%,
during the three months ended September 30, 1997 compared to the three months
ended September 30, 1996 primarily due to continued growth of the Company's
Venezuelan operations, as well as the continuing maturation of the Uracoa oil
field resulting in higher water handling, gas handling, workover, transportation
and chemical costs in Venezuela, partially offset by the elimination of the
export tariff in Russia. Depletion, depreciation and amortization increased $4.6
million, or 57.5%, during the three months ended September 30, 1997 compared to
the corresponding period of 1996 primarily due to the increased oil production
and increased capital requirements in Venezuela. Depletion expense per barrel of
oil equivalent produced from Venezuela and Russia during the three months ended
September 30, 1997 was $2.85 and $3.66, respectively, compared to $2.14 and
$3.22, respectively, during the corresponding period of the previous year.
General and administrative expenses increased $2.1 million, or 56.8%, during the
three months ended September 30, 1997 compared to the corresponding period of
1996 primarily due to increased corporate activity associated with the growth of
the Company's business and increased Venezuelan municipal taxes of $0.7 million
(which are a function of growing oil revenues). Interest expense increased $0.4
million, or 7.8%, during the three months ended September 30, 1997 compared to
the three months ended September 30, 1996 primarily due to minimally higher
interest rates on certain borrowings. Income tax expense decreased $1.9 million,
or 29.7%, during the three months ended September 30, 1997 compared to the
corresponding period of 1996 due primarily to decreased taxable income in
Venezuela. The
<PAGE> 17
17
net income attributable to the minority interest decreased $1.7 million, or
58.6%, for the three months ended September 30, 1997 compared to the three
months ended September 30, 1996 as a result of decreased net income from
Benton-Vinccler's operations in Venezuela.
NINE MONTHS ENDED SEPTEMBER 30, 1997 AND 1996
The Company had revenues of $132.5 million for the nine months ended September
30, 1997. Expenses incurred during the period consisted of lease operating costs
and production taxes of $29.9 million, depletion, depreciation and amortization
expense of $32.7 million, general and administrative expense of $16.7 million,
interest expense of $16.7 million, income tax expense of $14.9 million and a
minority interest of $5.6 million. Net income for the period was $16.0 million
or $0.51 per share (fully diluted).
By comparison, the Company had revenues of $115.7 million for the nine months
ended September 30, 1996. Expenses incurred during the period consisted of lease
operating costs and production taxes of $15.3 million, depletion, depreciation
and amortization expense of $22.8 million, general and administrative expense of
$12.6 million, interest expense of $10.8 million, partnership exchange expense
of $2.1 million, income tax expense of $15.8 million, minority interest of $7.3
million and an extraordinary charge for early retirement of debt, net of tax
benefit, of $10.1 million. Income before extraordinary charge for the period was
$29.0 million or $0.96 per share (fully diluted). Net income was $18.9 million
or $0.63 per share (fully diluted).
Revenues increased $16.8 million, or 14.5%, during the nine months ended
September 30, 1997 compared to the corresponding period of 1996 primarily due to
increased oil sales in Venezuela partially offset by the sale of substantially
all of the Company's domestic properties in April 1996. Sales quantities for the
nine months ended September 30, 1997 from Venezuela and Russia were 11,302,893
Bbl and 667,312 Bbl, respectively, compared to 9,009,983 Bbl and 572,947 Bbl,
respectively, for the nine months ended September 30, 1996. Prices for crude oil
averaged $10.11 per Bbl (pursuant to terms of an operating service agreement)
from Venezuela and $11.44 per Bbl from Russia for the nine months ended
September 30, 1997 compared to $10.31 per Bbl from Venezuela and $12.11 per Bbl
from Russia for the corresponding period of 1996. Domestic sales quantities for
the nine months ended September 30, 1996 were 5,876 Bbl of crude oil and
condensate and 1,443,834 Mcf of natural gas. Domestic prices for crude oil and
natural gas averaged $20.18 per Bbl and $2.92 per Mcf during the nine months
ended September 30, 1996. Revenues for the nine months ended September 30, 1996
were reduced by a loss of $1.8 million related to a commodity hedge agreement.
Investment earnings increased $4.8 million, or 117.1%, during the nine months
ended September 30, 1997 compared to the nine months ended September 30, 1996
due to increased cash and marketable securities resulting primarily from the
issuance of senior unsecured notes in May 1996 and sale of property interests in
Louisiana. Revenues for the nine months ended September 30, 1997 were increased
by a foreign exchange gain of $1.7 million compared to a gain of $2.0 million
during the corresponding period of 1996.
Lease operating costs and production taxes increased $14.6 million, or 95.4%,
during the nine months ended September 30, 1997 compared to the nine months
ended September 30, 1996 primarily due to continued growth of the Company's
Venezuelan operations, as well as the continuing maturation of the Uracoa oil
field resulting in higher water handling, gas handling, workover, transportation
and chemical costs in Venezuela and penalties related to late payments of
various taxes in Russia by GEOILBENT. Depletion, depreciation and amortization
increased $9.9 million, or 43.4%, during the nine months ended September 30,
1997 compared to the corresponding period of 1996 primarily due to the increased
oil production and increased capital costs in Venezuela. Depletion expense per
barrel of oil equivalent produced from Venezuela and Russia during the nine
months ended September 30, 1997 was $2.63 and $3.53, respectively, compared to
$2.09 and $3.34, respectively, during the corresponding period of the previous
year. General and administrative expenses increased $4.1 million, or 32.5%,
during the nine months ended September 30, 1997 compared to the corresponding
period of 1996 primarily due to increased corporate activity associated with the
growth of the Company's business and increased Venezuelan municipal taxes of
$1.3 million (which are a function of growing oil revenues). Interest expense
increased $5.9 million, or 54.6%, during the nine months ended September 30,
1997 compared to the nine months ended September 30, 1996 primarily due to the
issuance of $125 million in 11.625% senior unsecured notes in May 1996. The
Company incurred partnership exchange expenses of $2.1 million during the nine
months ended September 30, 1996 as a result of the completion of an exchange
offer resulting in the liquidation of three limited partnerships. Income tax
expense decreased $0.9 million, or 5.7%, during the nine months ended September
30, 1997 compared to the corresponding period of 1996 due primarily to decreased
taxable income in Venezuela. The net income attributable to the minority
interest decreased $1.7 million, or 23.3%, for the nine months ended September
30, 1997 compared to the nine months ended September 30, 1996 as a result of
decreased net income from Benton-Vinccler's operations in Venezuela. The Company
recorded an extraordinary charge for early
<PAGE> 18
18
retirement of debt, net of tax benefit, of $10.1 million during the nine months
ended September 30, 1996 as a result of prepayment premiums due upon the early
repayment of senior unsecured notes.
INTERNATIONAL OPERATIONS
As a private contractor, Benton-Vinccler is subject to a statutory income tax
rate of 34%. However, Benton-Vinccler reported significantly lower effective tax
rates for 1996 due to significant non-cash tax deductible expenses resulting
from devaluations in Venezuela when Benton-Vinccler had net monetary liabilities
in U.S. dollars. The Company cannot predict the timing or impact of future
devaluations in Venezuela.
A 3-D seismic survey is being conducted over the southwestern portion of the
Delta Centro Block in Venezuela with an expected total cost to the Company
during 1997 and 1998 of approximately $8-9 million. Following the initial
interpretation of the seismic data, an exploration well is expected to be
drilled during 1998 at a cost to the Company of approximately $3-4 million.
Subsequent seismic and drilling programs will be based on the results of the
1997-1998 activity. The Company's operations related to Delta Centro will be
subject to oil and gas industry taxation, which currently provides for royalties
of 16.67% and income taxes of 67.7%.
GEOILBENT is subject to a statutory income tax rate of 35%. GEOILBENT has also
been subject to various other tax burdens, including an oil export tariff which
was terminated effective July 1, 1996. Excise, pipeline and other taxes continue
to be levied on all oil producers and certain exporters. The Russian regulatory
environment continues to be volatile and the Company is unable to predict the
impact of taxes, duties and other burdens for the future.
In December 1996, the Company acquired Crestone Energy Corporation, a privately
held company headquartered in Denver, Colorado. Crestone's principal asset is a
petroleum contract with China National Offshore Oil Company for an area known as
Wan'An Bei, WAB-21. The WAB-21 petroleum contract covers 6.2 million acres in
the South China Sea, with an option for another one million acres under certain
circumstances, and lies within an area which is the subject of a territorial
dispute between the People's Republic of China and Vietnam. Vietnam has also
executed an agreement on a portion of the same offshore acreage with Conoco, a
unit of DuPont Corporation. The territorial dispute has existed for many years,
and there has been limited exploration and no development activity in the area
under dispute. It is uncertain when or how this dispute will be resolved, and
under what terms the various countries and parties to the agreements may
participate in the resolution, although certain proposed economic solutions
currently under discussion would result in the Company's interest being reduced.
The Company, through Crestone, has submitted plans and budgets to CNOOC for an
initial seismic program to survey the area. However, exploration activities will
be subject to resolution of such territorial dispute.
In August 1997, the Company acquired the rights to a PSA with Jordan's Natural
Resources Authority to explore, develop and produce the Sirhan block in
southeastern Jordan. The Sirhan block consists of approximately 1.2 million
acres (4,827 square kilometers) and is located in the Sirhan basin adjacent to
the Saudi Arabia border. Under the terms of the PSA, the Company is obligated to
make certain capital and operating expenditures in up to three phases over eight
years. The Company is obligated to spend $5.1 million in the first exploration
phase, which is expected to last approximately two years. If the Company
ultimately elects to continue through phases two and three, it would be
obligated to spend an additional $18 million over the succeeding six years.
In October 1997, the Company signed a farmout agreement with Shell Exploration
(China) Limited ("Shell") whereby the Company will acquire a 50% participation
interest in Shell's Liaohe area onshore exploration project in northeast China,
subject to approval of such assignment by the Ministry of Foreign Trade and
Economic Cooperation of China. Shell holds a petroleum contract with China
National Petroleum Corporation ("CNPC") to explore and develop the deep rights
in the Qingshui Block, a 563 square kilometer area (approximately 140,000 acres)
in the delta of the Liaohe River. Shell will be the operator of the project. The
Company is required to pay to Shell 50% of Shell's costs to date, estimated to
be approximately $4.0 million ($2 million to the Company) and to pay 100% of the
costs for the phase one exploration period, with a maximum required expenditure
of $8.0 million. If the first phase of the exploration period results in a
commercial discovery and if the Company elects to continue to phase two, then
the Company will pay 100% of the costs of the second phase of the exploration
period, with a maximum required expenditure of $8.0 million. The Company and
Shell will be responsible for the costs of the third exploration phase and the
costs of development activities associated with any of the three phases in
proportion to their interests.
<PAGE> 19
19
EFFECTS OF CHANGING PRICES, FOREIGN EXCHANGE RATES AND INFLATION
The Company's results of operations and cash flow are affected by changing oil
and gas prices. However, the Company's Venezuelan revenues are based on a fee
adjusted quarterly by the percentage change of a basket of crude oil prices
instead of by absolute dollar changes, which dampens both any upward and
downward effects of changing prices on the Company's Venezuelan revenues and
cash flows. If the price of oil and gas increases, there could be an increase in
the cost to the Company for drilling and related services because of increased
demand, as well as an increase in revenues. Fluctuations in oil and gas prices
may affect the Company's total planned development activities and capital
expenditure program.
There are presently no restrictions in either Venezuela or Russia that restrict
converting U.S. dollars into local currency. However, from June 1994 through
April 1996, Venezuela implemented exchange controls which significantly limited
the ability to convert local currency into U.S. dollars. Because payments made
to Benton-Vinccler are made in U.S. dollars into its United States bank account,
and Benton-Vinccler is not subject to regulations requiring the conversion or
repatriation of those dollars back into the country, the exchange controls did
not have a material adverse effect on Benton-Vinccler or the Company. Currently,
there are no exchange controls in Venezuela or Russia that restrict conversion
of local currency into U.S. dollars.
Within the United States, inflation has had a minimal effect on the Company, but
it is potentially an important factor in results of operations in Venezuela and
Russia. With respect to Benton-Vinccler and GEOILBENT, substantially all of the
sources of funds, including the proceeds from oil sales, the Company's
contributions and credit financings, are denominated in U.S. dollars, while
local transactions in Russia and Venezuela are conducted in local currency. If
the rate of increase in the value of the dollar compared to the bolivar
continues to be less than the rate of inflation in Venezuela, then inflation
could be expected to have an adverse effect on Benton-Vinccler.
During the nine months ended September 30, 1997, the Company realized net
foreign exchange gains of $1.7 million. There are many factors affecting foreign
exchange rates and resulting exchange gains and losses, many of which are beyond
the control of the Company. The Company has recognized significant exchange
gains and losses in the past, resulting from fluctuations in the relationship of
the Venezuelan and Russian currencies to the U.S. dollar. It is not possible to
predict the extent to which the Company may be affected by future changes in
exchange rates and exchange controls.
CAPITAL RESOURCES AND LIQUIDITY
The oil and gas industry is a highly capital intensive business. The Company
requires capital principally to fund the following costs: (i) drilling and
completion costs of wells and the cost of production and transportation
facilities; (ii) geological, geophysical and seismic costs; and (iii)
acquisition of interests in oil and gas properties. The amount of available
capital will affect the scope of the Company's operations and the rate of its
growth.
The net funds raised and/or used in each of the operating, investing and
financing activities for the nine months ended September 30, 1997 and 1996 are
summarized in the following table and discussed in further detail below:
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
-------------------------------
1997 1996
---------- ----------
<S> <C> <C>
Net cash provided by operating activities $ 81,923 $ 60,414
Net cash used in investing activities (80,924) (147,240)
Net cash provided by (used in) financing activities (476) 103,293
---------- ----------
Net increase in cash $ 523 $ 16,467
========== ===========
</TABLE>
At September 30, 1997, the Company had current assets of $142.9 million
(including $4.5 million of cash restricted as collateral for a loan to
GEOILBENT) and current liabilities of $64.9 million (including a loan of $1.5
million collateralized by restricted cash), resulting in working capital of
$78.0 million and a current ratio of 2.2:1. This compares to Company's working
capital of $98.4 million at December 31, 1996. The decrease of $20.4 million was
due primarily to the continuing development of the South Monagas Unit in
Venezuela.
<PAGE> 20
20
CASH FLOW FROM OPERATING ACTIVITIES. During the nine months ended September 30,
1997 and 1996, respectively, net cash provided by operating activities was
approximately $81.9 million and $60.4 million, respectively. Cash flow from
operating activities increased by $21.5 million during the nine months ended
September 30, 1997 over the corresponding period of the prior year due primarily
to increased oil sales in Venezuela.
CASH FLOW FROM INVESTING ACTIVITIES. During the nine months ended September 30,
1997 and 1996, the Company had drilling and production related capital
expenditures of approximately $76.4 million and $62.2 million, respectively. Of
the 1997 expenditures, $68.5 million was attributable to the development of the
South Monagas Unit in Venezuela, $2.3 million related to the development of the
North Gubkinskoye Field in Russia, $1.8 million related to a 3-D seismic survey
in the Delta Centro Block in Venezuela, $0.9 million related to the development
of the Sirhan Block in Jordan and $2.9 million was attributable to other
projects.
The Company expects 1997 capital expenditures to be approximately $110.0
million, including $6.0 million in expenditures for Russia, net to the Company's
interest (which will be funded solely from borrowings under the GEOILBENT Credit
Facility, cash flow from operations or other financings). The Company expects
1998 capital expenditures of approximately $160.0 million, including $20.0
million in expenditures for Russia, net to the Company's interest (which will be
funded from borrowings under the GEOILBENT Credit Facility, cash flow from
operations or other financings). Funding for the currently anticipated 1998
capital expenditures is expected to come from working capital, cash flow from
operations or sales of property interests.
The Company continues to evaluate and pursue domestic and international
opportunities which fit within the Company's business strategy. The Company is
currently evaluating certain development and/or acquisition opportunities, but
it is not presently known whether, or on what terms, such evaluations will
result in future agreements or acquisitions.
CASH FLOW FROM FINANCING ACTIVITIES. In May 1996, the Company issued $125
million in 11.625% senior unsecured notes due May 1, 2003. Interest on the notes
is due May 1 and November 1 of each year. The indenture agreement provides for
certain limitations on liens, additional indebtedness, certain investment and
capital expenditures, dividends, mergers and sales of assets. At September 30,
1997, the Company was in compliance with all covenants of the indenture. A
portion of the proceeds from the notes was used to repay certain long term
indebtedness and certain short term obligations, and the remainder has been or
will be used for capital expenditure and working capital purposes.
In November 1997, the Company issued $115 million in 9.375% senior unsecured
notes due November 1, 2007. Interest on the notes is due May 1 and November 1 of
each year, beginning May 1, 1998. The Company subsequently repurchased $10
million of the notes at their par value. The indenture agreement provides for
certain limitations on liens, additional indebtedness, certain investment and
capital expenditures, dividends, mergers and sales of assets. The proceeds from
the notes will be used for general corporate purposes, including the Company's
ongoing exploration and development programs. Pending such use, the net proceeds
will be invested in Cash Equivalents as defined in the indenture (see Note 1).
The EBRD and IMB have agreed to lend a total of $65 million to GEOILBENT (owned
34% by the Company) under parallel reserve-based, non-recourse loan agreements.
Initial funding of $10.2 million occurred in October 1997, upon satisfaction of
certain conditions precedent. The proceeds from the loans will be used by
GEOILBENT to develop the North Gubkinskoye and Prisklonovoye fields in West
Siberia, Russia. Additional borrowings will be based on achieving certain
reserve and production milestones.
<PAGE> 21
21
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2 CHANGES IN SECURITIES
None.
ITEM 3 DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4 SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5 OTHER INFORMATION
None.
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.1 The indenture dated as of November 3, 1997 for
$115 million of 9 3/8% Senior Notes due 2007.
11.1 Computation of per share earnings for the three
months ended September 30, 1997 and 1996.
11.2 Computation of per share earnings for the nine
months ended September 30, 1997 and 1996.
(b) Reports on Form 8-K.
On July 8, 1997, the Company filed a report on Form 8-K,
under Item 5. "Other Events" regarding the repurchase of
50,000 shares of its Common Stock in the open market on
June 25, 1997, at a purchase price of $13.94 per share.
<PAGE> 22
22
SIGNATURES
Pursuant to the requirements of Securities Exchange Act of 1934, the registrant
has duly caused this report to be signed on its behalf by the undersigned
thereunto duly authorized.
BENTON OIL AND GAS COMPANY
Dated: November 12, 1997 By: /S/Michael B. Wray
------------------
Michael B. Wray
President
Dated: November 12, 1997 By: /S/James M. Whipkey
-------------------
James M. Whipkey
Senior Vice President and Chief
Financial Officer
<PAGE> 1
Exhibit 10.1
================================================================================
BENTON OIL AND GAS COMPANY
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, Trustee
Indenture
Dated as of November 3, 1997
----------
$115,000,000
9 3/8% Senior Notes Due 2007
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE
---------------------
<TABLE>
<CAPTION>
TIA Sections Indenture Sections
- ------------ ------------------
<S> <C>
ss. 310(a)(1)....................................................... 5.09
(a)(2)....................................................... 5.09
(b).......................................................... 5.10
ss. 312(a).......................................................... 3.06
ss. 313(c).......................................................... 3.07; 10.04
ss. 314(a).......................................................... 3.19; 10.04
(a)(4)....................................................... 3.05; 10.04
(c)(1)....................................................... 10.05
(c)(2)....................................................... 10.05
(e).......................................................... 10.05
ss. 315(b).......................................................... 5.06; 10.04
ss. 316(a)(1)(A).................................................... 4.08
(a)(1)(B).................................................... 4.09
(b) 4.09; 7.02
ss. 317(a)(1) 4.02
ss. 317(a)(2) 4.02
ss. 318(a) 10.07
(c) 10.07
</TABLE>
2
<PAGE> 3
TABLE OF CONTENTS
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<TABLE>
<CAPTION>
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<S> <C>
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................................10
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities.......................................32
SECTION 2.02. Execution of Securities.........................................................32
SECTION 2.03. Certificate of Authentication...................................................32
SECTION 2.04. Form, Denomination and Date of Securities; Payments of
Interest..............................................................................32
SECTION 2.05. Restrictive Legends.............................................................35
SECTION 2.06. Registration, Transfer and Exchange.............................................37
SECTION 2.07. Book-entry Provisions for Global Securities.....................................38
SECTION 2.08. Special Transfer Provisions.....................................................40
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities.......................44
SECTION 2.10. Cancellation of Securities; Destruction Thereof.................................45
SECTION 2.11. Temporary Securities............................................................45
SECTION 2.12. CUSIP and CINS Numbers..........................................................46
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE
SECTION 3.01. Payment of Principal and Interest...............................................46
SECTION 3.02. Offices for Payments, Etc.......................................................46
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee..............................47
SECTION 3.04. Paying Agents...................................................................47
SECTION 3.05. Certificates to Trustee.........................................................48
SECTION 3.06. Securityholders' Lists..........................................................48
SECTION 3.07. Reports by the Trustee..........................................................48
SECTION 3.08. Limitation on Indebtedness......................................................48
SECTION 3.09. Limitation on Indebtedness of Unrestricted Subsidiaries.........................49
SECTION 3.10. Limitation on Restricted Payments...............................................49
SECTION 3.11. Limitation on Transactions with Affiliates......................................51
SECTION 3.12. Disposition of Proceeds of Asset Sales..........................................52
SECTION 3.13. Limitation on Liens Securing Indebtedness.......................................55
SECTION 3.14. Limitation on Conduct of Business...............................................56
SECTION 3.15. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.....................................................56
SECTION 3.16. Limitation on Guarantees........................................................57
SECTION 3.17. Change in Control...............................................................57
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 3.18. Provision of Financial Information..............................................59
SECTION 3.19. Waiver of Stay, Extension or Usury Laws.........................................59
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default.....................................................................60
SECTION 4.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt..................................................................................62
SECTION 4.03. Application of Proceeds.........................................................65
SECTION 4.04. Suits for Enforcement...........................................................65
SECTION 4.05. Restoration of Rights on Abandonment of Proceedings.............................66
SECTION 4.06. Limitations on Suits by Securityholders.........................................66
SECTION 4.07. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default.....................................................................66
SECTION 4.08. Control by Securityholders......................................................67
SECTION 4.09. Waiver of Past Defaults.........................................................67
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default......................................................................68
SECTION 5.02. Certain Rights of the Trustee...................................................69
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof.........................................70
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, Etc........................70
SECTION 5.05. Moneys Held by Trustee..........................................................71
SECTION 5.06. Notice of Default...............................................................71
SECTION 5.07. Compensation and Indemnification of Trustee and Its
Prior Claim...........................................................................71
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, Etc..........................72
SECTION 5.09. Persons Eligible for Appointment as Trustee.....................................72
SECTION 5.10. Resignation and Removal; Appointment of Successor
Trustee...............................................................................72
SECTION 5.11. Acceptance of Appointment by Successor Trustee..................................73
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee...................................................................74
SECTION 5.13. Preferential Collection of Claims...............................................75
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
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<S> <C>
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Evidence of Action Taken by Securityholders.....................................75
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date...............................................................75
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding..............................76
SECTION 6.04. Right of Revocation of Action Taken.............................................76
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of
Securityholders.......................................................................77
SECTION 7.02. Supplemental Indentures With Consent of Securityholders.........................78
SECTION 7.03. Effect of Supplemental Indenture................................................79
SECTION 7.04. Documents to Be Given to Trustee; Compliance With TIA...........................79
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures............................................................................79
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. When Issuer May Merge, Etc......................................................80
SECTION 8.02. Successor Corporation Substituted...............................................80
SECTION 8.03. Opinion of Counsel to Trustee...................................................80
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.01. Satisfaction and Discharge of Indenture.........................................81
SECTION 9.02. Application by Trustee of Funds Deposited for Payment of
Securities............................................................................81
SECTION 9.03. Repayment of Moneys Held by Paying Agent........................................82
SECTION 9.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years.............................................................82
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability..............................................82
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
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<S> <C>
SECTION 10.02. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders.......................................................................82
SECTION 10.03. Successors and Assigns of Company Bound by Indenture...........................83
SECTION 10.04. Notices and Demands on Company, Trustee and
Securityholders.......................................................................83
SECTION 10.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein....................................................83
SECTION 10.06. Payments Due on Saturdays, Sundays and Holidays................................85
SECTION 10.07. Conflict of Any Provision of Indenture With Trust
Indenture Act of 1939.................................................................85
SECTION 10.08. New York Law to Govern.........................................................85
SECTION 10.09. Counterparts...................................................................85
SECTION 10.10. Effect of Headings.............................................................85
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Right of Optional Redemption; Prices...........................................85
SECTION 11.02. Notice of Redemption; Partial Redemptions......................................86
SECTION 11.03. Payment of Securities Called for Redemption....................................87
SECTION 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption..............................................................87
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Company's Option to Effect Defeasance or Covenant
Defeasance............................................................................88
SECTION 12.02. Defeasance and Discharge.......................................................88
SECTION 12.03. Covenant Defeasance............................................................88
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance................................88
SECTION 12.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.........................................91
SECTION 12.06. Reinstatement..................................................................91
SIGNATURES
TESTIMONIUM
ACKNOWLEDGMENTS
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
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<S> <C>
EXHIBIT A. Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S...................................................A-1
</TABLE>
v
<PAGE> 8
THIS INDENTURE, dated as of November 3, 1997 between Benton Oil and Gas
Company, a Delaware corporation (the "COMPANY"), and First Trust of New York,
National Association (the "TRUSTEE"),
W I T N E S S E T H :
WHEREAS, the Company has duly authorized the issue of its 9 3/8% Senior
Notes Due 2007 (the "SECURITIES") and, to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Securities and the Trustee's certificate of authentication
shall be in substantially the following form:
[FORM OF FACE OF SECURITY]
No. $
[CUSIP][CINS]
Benton Oil and Gas Company
9 3/8% Senior Note Due 2007
Benton Oil and Gas Company, a Delaware corporation (the "COMPANY"), for
value received hereby promises to pay to________________or registered assigns
the principal sum of _____________Dollars at the Company's office or agency for
said purpose in the City of New York, on November 1, 2007, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semi-annually on May 1 and November 1 (each an "INTEREST PAYMENT DATE") of each
year, commencing with May 1, 1998 on said principal sum in like coin or currency
at the rate per annum set forth above at said office or agency from the most
recent Interest Payment Date to which interest on the Securities has been paid
or duly provided for, unless the date hereof is a date to which interest on the
Securities has been paid or duly provided for, in which case from the date of
this Security. Notwithstanding the foregoing, if the date hereof is after April
15 or October 15 (each an "INTEREST RECORD DATE"), as the case may be, and
before the immediately following Interest Payment Date, this Security shall bear
interest from such Interest Payment Date provided, that if the Company shall
default in the payment of interest due on such Interest Payment Date then this
Security shall bear interest from the next preceding Interest Payment Date to
which interest on the Securities has been paid or duly provided for. The
interest so payable on any Interest Payment Date will, except as otherwise
provided in the Indenture referred to on the reverse hereof, be paid to the
person in whose name this Security is
<PAGE> 9
registered at the close of business on the Interest Record Date preceding such
Interest Payment Date whether or not such day is a business day; provided that
interest may be paid, at the option of the Company, by mailing a check therefor
payable to the registered holder entitled thereto at such holder's last address
as it appears on the Security register or by wire transfer, in immediately
available funds, to such bank or other entity in the continental United States
as shall be designated by such holder and shall have appropriate facilities for
such purpose.
Interest, other than default interest, on the Securities will be
computed on the basis of a 360-day year consisting of twelve 30-day months.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall not be valid or obligatory until the certificate of
authentication hereon shall have been duly signed by the Trustee acting under
the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
[Seal]
BENTON OIL AND GAS COMPANY
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
Title:
2
<PAGE> 10
[FORM OF REVERSE OF SECURITY]
Benton Oil and Gas Company
9 3/8% Senior Note Due 2007
This Security is one of a duly authorized issue of debt securities of
the Company, limited to the aggregate principal amount of $115,000,000 (except
as otherwise provided in the Indenture mentioned below), issued or to be issued
pursuant to an indenture dated as of November 3, 1997 (the "INDENTURE"), duly
executed and delivered by the Company to First Trust of New York, National
Association, as Trustee (herein called the "TRUSTEE"). Reference is hereby made
to the Indenture and all indentures supplemental thereto for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders (the words "HOLDERS" or "HOLDER"
meaning the registered holders or registered holder) of the Securities.
This Security will bear interest until final maturity at a rate per
annum shown above, except as provided in the next paragraph. The Company will
pay interest on overdue principal of, premium, if any, and to the extent lawful,
interest on overdue installments of interest, at a 11 3/8% rate per annum based
on a year of 360 days and actual days elapsed.
[In the event ("REGISTRATION DEFAULT") that (i) the Exchange Offer
Registration Statement (as defined in the Indenture) relating to the Exchange
Offer (as defined in the Indenture) is not filed with the Commission (as defined
in the Indenture) on or prior to the date that is 60 days after the Closing Date
(as defined in the Indenture), (ii) the Exchange Offer Registration Statement is
not declared effective by the Commission or a Shelf Registration Statement is
not filed on or prior to the date that is 90 days after the Closing Date, or
(iii) the Exchange Offer is not consummated or a Shelf Registration Statement
(as defined in the Indenture) is not declared effective on or prior to the date
that is 120 days after the Closing Date, then the Company will be required to
pay additional interest (in addition to the interest otherwise due hereon)
("ADDITIONAL INTEREST") to each Holder during the first 90-day period
immediately following the occurrence of each Registration Default in an amount
equal to 0.25% per annum. The amount of interest will increase by an additional
0.25% per annum for each subsequent 90 day period until such Registration
Default is cured, up to a maximum amount of Additional Interest of 1.00% per
annum. "REGISTRATION DATE" means the earlier of the date on which this Security
is exchanged pursuant to the Exchange Offer (or could be so
3
<PAGE> 11
exchanged) or the date on which there shall otherwise be an effective
Registration of this Security.](1)
[There shall also be payable in respect of this Security all Additional
Interest that may have accrued on the Security for which this Security was
exchanged (as defined in such Security) pursuant to the Exchange Offer or
otherwise pursuant to a Registration of such Security, such Additional Interest
to be payable in accordance with the terms of such Security.](2)
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all the Securities may be declared
due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the holders of a
majority in aggregate principal amount of the Securities then outstanding and
that, prior to any such declaration, such holders may waive any past default
under the Indenture and its consequences except a default in the payment of
principal of or premium, if any, or interest on any of the Securities. Any such
consent or waiver by the holder of this Security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such holder and upon all
future holders and owners of this Security and any Security which may be issued
in exchange or substitution herefor, whether or not any notation thereof is made
upon this Security or such other Securities.
The Indenture permits the Company and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Securities; provided that no such supplemental indenture shall (a) extend
the final Maturity of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on the redemption hereof or upon the occurrence of an Event of
Default, or reduce the Change in Control Purchase Price, as defined in the
Indenture, or the Asset Sale Offer Price, as defined in the Indenture, or impair
or affect the rights of any Securityholder to institute suit for the payment
thereof without the consent of the holder of each Security so affected; or (b)
reduce the aforesaid percentage of Securities, the consent of the holders of
which is required for any such supplemental indenture, without the consent of
the holders of all Securities then outstanding.
- --------
(1) To be included in Securities not Exchange Securities.
(2) To be included in Exchange Securities.
4
<PAGE> 12
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the place, times, and rate, and in the currency,
herein prescribed.
The Securities are issuable only as registered Securities without
coupons in denominations of $1,000 and any multiple of $1,000.
At the office or agency of the Company referred to on the face hereof
and in the manner and subject to the limitations provided in the Indenture,
Securities may be exchanged for a like aggregate principal amount of Securities
of other authorized denominations.
Upon due presentment for registration of transfer of this Security at
the above-mentioned office or agency of the Company, a new Security or
Securities of authorized denominations, for a like aggregate principal amount,
will be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto.
The Securities may be redeemed at the option of the Company as a whole,
or from time to time in part, on any date on or after November 1, 2002, upon
mailing a notice of such redemption not less than 30 nor more than 60 days prior
to the date fixed for redemption to the holders of Securities to be redeemed,
all as provided in the Indenture, at the following redemption prices (expressed
in percentages of the principal amount) together in each case with accrued
interest to the date fixed for redemption:
If redeemed during the twelve-month period beginning November 1,
Year Percentage
2002................................................ 104.6875%
2003................................................ 103.1250%
2004................................................ 101.5625%
2005................................................ 100.0000%
provided that if the date fixed for redemption is an Interest Payment Date, then
the interest payable on such date shall be paid to the holder of record on the
next preceding Interest Record Date.
In addition, at any time prior to November 1, 2000, the Company may
redeem up to 33% of the aggregate principal amount of the Securities then
outstanding with the proceeds of a Public Equity Offering within 90 days of such
offering at a redemption price equal to 109.375% of the principal amount of such
Securities, plus accrued and unpaid interest to the redemption date; provided
that
5
<PAGE> 13
if the date fixed for redemption is an Interest Payment Date, then the interest
payable on such date shall be paid to the holder of record on the next preceding
Interest Record Date; and provided further, that at least $77 million in
aggregate principal amount of Securities remain outstanding immediately after
giving effect to such redemption.
Subject to payment by the Company of a sum sufficient to pay the amount
due on redemption, interest on this Security (or portion hereof if this Security
is redeemed in part) shall cease to accrue upon the date duly fixed for
redemption of this Security (or portion hereof if this Security is redeemed in
part).
Upon a Change in Control (as defined in the Indenture), any holder of
Securities will have the right to cause the Company to purchase the Securities
of such holder, in whole or in part in integral multiples of aggregate principal
amount of $1,000, at a purchase price in cash equal to 101% of the principal
amount thereof plus accrued and unpaid interest, if any, to any Change in
Control Purchase Date, as provided in, and subject to the terms of the
Indenture.
The Company, the Trustee, and any authorized agent of the Company or
the Trustee, may deem and treat the registered holder hereof as the absolute
owner of this Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Company or the Trustee or any authorized agent of the Company or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Company nor
the Trustee nor any authorized agent of the Company or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
premium, if any, or the interest on this Security, for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Indenture is hereby incorporated by the reference and to the extent
of any variance between the provisions hereof and the Indenture, the Indenture
shall control.
6
<PAGE> 14
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By:
--------------------------
Authorized Officer
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby
sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- -------------------------------------------------------------------------------
Please print or typewrite name and address including zip code of assignee
- -------------------------------------------------------------------------------
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing ____________________ attorney to transfer said Security on the
books of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
PERMANENT OFFSHORE GLOBAL SECURITIES AND
OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of an effective Registration or (ii)
two years after the later of the original issuance of this Security or the last
date on which this Security was held by the Company or an Affiliate of the
Company, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
7
<PAGE> 15
[Check One]
---------
[ ] (a) this Security is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions
of transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:
----------- ------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as written upon
the face of the within-mentioned instrument in
every particular, without alteration or any
change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "QUALIFIED
INSTITUTIONAL BUYER" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
----------- ------------------------------------------
NOTICE: To be executed by an executive officer
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<PAGE> 16
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 3.12 or Section 3.17 of the Indenture, check the Box: [ ]
If you wish to have a portion of this Security purchased by the
Company pursuant to Section 3.12 or Section 3.17 of the Indenture, state the
amount:
maturity):
$
--------------.
Date:
----------------
Your Signature:
--------------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:
--------------------------
9
<PAGE> 17
AND WHEREAS, all things necessary to make the Securities, when executed
by the Company and authenticated and delivered by the Trustee as in the
Indenture provided, the valid, binding and legal obligations of the Company, and
to constitute these presents a valid indenture and agreement according to its
terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Company and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
the definitions of which in the Securities Act of 1933 are referred to in the
Trust Indenture Act of 1939 (except as herein otherwise expressly provided or
unless the context otherwise clearly requires), shall have the meanings assigned
to such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. All accounting terms used herein and not
expressly defined shall have the meanings given to them in accordance with GAAP
(whether or not such is indicated herein). The words "HEREIN", "HEREOF" and
"HEREUNDER" and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision. The terms
defined in this Article include the plural as well as the singular.
"ACQUIRED INDEBTEDNESS" means, with respect to any person, Indebtedness
of such person (i) existing at the time such person becomes a Restricted
Subsidiary or (ii) assumed in connection with the acquisition of assets from
another person, including Indebtedness Incurred in connection with, or in
contemplation of, such person becoming a Restricted Subsidiary or such
acquisition, as the case may be.
"AFFILIATE" means, with respect to any person, any other person
directly or indirectly controlling, controlled by, or under common control with,
such person, or any other person that owns, directly or indirectly, 5% or more
of such person's
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<PAGE> 18
Voting Stock or any Affiliate of any such 5% or more owner. For the purposes of
this definition, "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as applied to
any person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such person, whether
through the ownership of Voting Stock, by contract or otherwise.
"AFFILIATE TRANSACTION" has the meaning provided in Section 3.11.
"AGENT MEMBERS" has the meaning provided in Section 2.07(a).
"AMOUNT" means, (i) with respect to any Indebtedness outstanding at any
time other than Preferred Stock, the principal amount thereof; provided that the
amount of any such Indebtedness outstanding at any time that was issued at a
price less than the principal amount thereof shall equal the amount of the
liability in respect thereof at such time determined in accordance with GAAP and
(ii) with respect to any Indebtedness outstanding at any time that is Preferred
Stock, the aggregate liquidation value thereof at such time.
"ASSET ACQUISITION" means (i) an Investment by the Company or any
Restricted Subsidiary in any other person pursuant to which such person shall
become a Restricted Subsidiary of the Company or any Restricted Subsidiary or
shall be merged into or consolidated with the Company or any Restricted
Subsidiary or (ii) an acquisition by the Company or any Restricted Subsidiary of
the assets of any person other than the Company or any Restricted Subsidiary
that constitute substantially all of a division or line of business of such
person.
"ASSET DISPOSITION" means the sale or other disposition by the Company
or any Restricted Subsidiary (other than to the Company or another Restricted
Subsidiary) of (i) all or substantially all of the Capital Stock of any
Restricted Subsidiary or (ii) all or substantially all of the assets that
constitute a division or line of business of the Company or any Restricted
Subsidiary.
"ASSET SALE" means any conveyance, transfer, lease or other disposition
(including, without limitation, by way of any merger, consolidation or other
similar transaction), directly or indirectly, in one or a series of related
transactions, of any Capital Stock or Redeemable Stock of any Restricted
Subsidiary (other than the sale and issuance of directors' qualifying shares) or
any other properties or assets of the Company or any Restricted Subsidiary
(other than any such conveyance, transfer, lease or other disposition (i) that
is permitted under the provisions of Article Eight, (ii) that involves any
transfer of Capital Stock, Redeemable Stock or other property or assets of a
Restricted Subsidiary to the Company or any other Restricted Subsidiaries or of
the Company to a Restricted Subsidiary, (iii) of (1) hydrocarbon or other
mineral products or (2) other assets in an amount not to exceed $10 million in
any twelve month period, in each case in the ordinary course
11
<PAGE> 19
of business or (iv) that involves the abandonment of any lease of non-producing
acreage).
"ASSET SALE OFFER PRICE" has the meaning provided in Section 3.12.
"AVERAGE LIFE" means, as of any date of determination, with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the product
of (i) the number of years from such date of determination to the date of each
successive scheduled principal payment of such Indebtedness and (ii) the amount
of such principal payment by (b) the sum of all such principal payments.
"BENTON-VINCCLER" means Benton-Vinccler, C.A.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or any
authorized committee of such Board.
"BUSINESS DAY" means a day which in the city (or in any of the cities,
if more than one) where amounts are payable in respect of the Securities, as
specified on the face of the form of Security recited above, is neither a legal
holiday nor a day on which banking institutions are authorized by law or
regulation to close.
"CAPITAL STOCK" means, with respect to any person, any and all shares,
interests, participations, rights or other equivalents (however designated) of
such person's capital stock or partnership interests whether now outstanding or
issued after the date of this Indenture, except Redeemable Stock.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any person, any
obligation relating to any property (whether real, personal or mixed) of that
person as lessee which, in conformity with GAAP, is required to be accounted for
as a capital lease for financial reporting purposes, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"CASH EQUIVALENTS" means, at any time, (i) any evidence of Indebtedness
with a maturity of 180 days or less issued or directly and fully guaranteed or
insured by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof), (ii) repurchase obligations for investments of the
type described in clause (i) for which delivery of the investment is made
against payment, (iii) demand or time deposits, bankers' acceptances and
certificates of deposit or acceptances with a maturity of 180 days or less of
any financial institution that is a member of the Federal Reserve System having
combined capital and surplus and undivided profits of not less than
$300,000,000, and (iv) commercial paper with a maturity of 180 days or less
issued by a corporation (except any Affiliate of the Company or Subsidiary of
the Company) organized under the laws of any state of
12
<PAGE> 20
the United States or the District of Columbia and rated at least A-1 by Standard
& Poor's Corporation and at least P-1 by Moody's Investors Service, Inc.
"CHANGE IN CONTROL" of the Company means the occurrence of any of the
following: (i) any "PERSON" (as such term is used in Sections 13(d) and 14(d)
(or any successor provisions) of the Exchange Act) is or becomes the "BENEFICIAL
OWNER" (as defined in Rules 13d-3 and 13d-5 (or any successor provisions) under
the Exchange Act) of 50% or more of the total voting power of the Voting Stock
of the Company, (ii) there shall be consummated any consolidation or merger of
the Company (a) in which the Company is not the continuing or surviving
corporation or (b) pursuant to which the outstanding Voting Stock of the Company
would be converted into cash, securities or other property, in each case other
than a consolidation or merger of the Company in which (1) the outstanding
Voting Stock of the Company is changed into or exchanged for Voting Stock of the
continuing or surviving corporation and (2) the holders of the Company's Voting
Stock immediately prior to the consolidation or merger own, directly or
indirectly, at least a majority of the Voting Stock of the continuing or
surviving corporation immediately after the consolidation or merger, (iii) the
Company sells, transfers or otherwise disposes of all or substantially all of
its assets, (iv) the cessation of Continuing Directors for any reason to
constitute a majority of the Board of Directors then in office, (v) so long as
any Indebtedness remains outstanding under the Convertible Debenture Indenture,
a Fundamental Change as defined therein, (vi) the Company ceases to own on a
fully diluted basis, directly or indirectly through one or more Restricted
Subsidiaries that are Wholly Owned Subsidiaries of the Company, 51% of the
outstanding Voting Stock of Benton-Vinccler, and (vii) Benton-Vinccler, sells,
transfers or otherwise disposes of a substantial part of its assets; provided
that neither of the events described in clause (vi) or (vii) will constitute a
"CHANGE IN CONTROL" if (x) during the four full fiscal quarters ended
immediately prior to the occurrence of such event, the EBITDA of the Company and
its Restricted Subsidiaries attributable to Benton-Vinccler, as a percentage of
the EBITDA of the Company and its Restricted Subsidiaries, was less than 20% and
(y) immediately prior to such event, the Oil and Gas Reserve Estimate of the
Company and its Restricted Subsidiaries attributable to Benton-Vinccler, as a
percentage of the Oil and Gas Reserve Estimate of the Company and its Restricted
Subsidiaries, is less than 20%. In connection with clause (vii) of this
definition, a sale, transfer or other disposition of assets of Benton-Vinccler
shall be deemed to be a sale, transfer or other disposition of a "SUBSTANTIAL
PART" of the assets of Benton-Vinccler if such assets, when added to all other
assets of Benton-Vinccler sold, transferred or otherwise disposed of (other than
the disposition of hydrocarbons or other mineral products in the ordinary course
of business) during the immediately preceding twelve months either (i) exceed
(based on the book value of all assets so sold, transferred or otherwise
disposed of during such twelve months) 25% of the net tangible assets of
Benton-Vinccler as of the end of its most recently completed full fiscal quarter
for which financial information is available determined in accordance with GAAP
or (ii) contributed more than 25%
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<PAGE> 21
of the net income of Benton-Vinccler during its most recently completed four
full fiscal quarters for which financial information is available determined in
accordance with GAAP.
"CLOSING DATE" shall mean November 3, 1997.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act.
"COMMODITY SWAP AGREEMENT" means any commodity swap agreement or other
similar agreement or arrangement.
"COMPANY" means (except as otherwise provided in Article Five) Benton
Oil and Gas Company, a Delaware corporation, and, subject to Article Eight, its
successors and assigns.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the aggregate
amount (without duplication) of (i) interest expense in accordance with GAAP
(including, in accordance with the following sentence, interest attributable to
Capitalized Lease Obligations and the undischarged balance of production
payments) during such period in respect of all Indebtedness of the Company and
its Restricted Subsidiaries (including (a) amortization of original issue
discount on any Indebtedness, (b) the interest portion of all deferred payment
obligations, calculated in accordance with GAAP, and (c) all commissions,
discounts and other fees and charges owed with respect to bankers' acceptance
financings and Currency Agreements, Interest Rate Agreements and Commodity Swap
Agreements, in each case to the extent attributable to such period), and (ii)
dividend requirements of the Company and its Restricted Subsidiaries with
respect to Redeemable Stock and with respect to all other Preferred Stock of any
Restricted Subsidiaries (in each case whether in cash or otherwise (except
dividends payable solely in shares of Capital Stock of the Company or any
Restricted Subsidiary)) paid, declared, accrued or accumulated during such
period, in each case to the extent attributable to such period and excluding
items eliminated in consolidation. For purposes of this definition, (a) interest
with respect to a Capitalized Lease Obligation or a production payment shall be
deemed to accrue at an interest rate reasonably determined by the Company to be
the rate of interest implicit in such Capitalized Lease Obligation or production
payment in accordance with GAAP and (b) interest expense attributable to any
Indebtedness represented by the guarantee by the Company or a Restricted
Subsidiary of an obligation of another person shall be deemed to be the interest
expense attributable to the Indebtedness guaranteed.
"CONSOLIDATED NET INCOME" means, for any period, the aggregate net
income (or loss) of the Company and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP; provided that the
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<PAGE> 22
following items shall be excluded from Consolidated Net Income (without
duplication): (i) the net income of any person in which the Company or any of
its Restricted Subsidiaries has an interest (which interest does not cause the
net income of such person to be consolidated with the net income of the Company
in accordance with GAAP) except to the extent of the amount of dividends or
distributions actually paid to the Company or its Restricted Subsidiaries by
such person in such period; (ii) solely for the purposes of calculating the
amount of Restricted Payments that may be made pursuant to this Indenture (and
in such case, except to the extent includible pursuant to the foregoing clause
(i) above), the net income (or loss) of any person accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with the
Company or any of its Restricted Subsidiaries or all or substantially all of the
property and assets of such person are acquired by the Company or any of its
Restricted Subsidiaries; (iii) the net income of any Restricted Subsidiary to
the extent that the declaration or payment of dividends or similar distributions
by such Restricted Subsidiary of such net income is not at the time permitted by
the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation; and (iv) all
extraordinary gains and losses or gains or losses attributable to Asset Sales.
If the Consolidated Net Income for any fiscal quarter of the Company includes a
ceiling limitation writedown (a "WRITEDOWN QUARTER") in accordance with the full
cost accounting method rules of the Commission (such a writedown, an "ACTUAL
WRITEDOWN") but such Actual Writedown would have been less or would not have
been required had such ceiling limitation been calculated using oil and gas
prices in effect on the last day of either of the two fiscal quarters of the
Company immediately succeeding such Writedown Quarter (such Actual Writedown, as
so recalculated, a "HYPOTHETICAL WRITEDOWN"), then Consolidated Net Income for
such Writedown Quarter, shall be increased by the amount by which such Actual
Writedown exceeds such Hypothetical Writedown; provided that in no event shall
any such increase singly, or in the case of any such increases for both quarters
immediately succeeding such Writedown Quarter, in the aggregate, exceed the
amount of such Actual Writedown).
"CONSOLIDATED NET WORTH" means, with respect to any person, as at any
date of determination, the consolidated stockholders' equity (or like balance
sheet designation) of such person as determined in accordance with GAAP.
"CONTINUING DIRECTORS" means any member of the Board of Directors on
the date of this Indenture, any director elected after the date hereof in any
annual meeting of the stockholders upon the recommendation of the Board of
Directors and any other member of the Board of Directors who is elected to
succeed a Continuing Director by a majority of Continuing Directors who are then
members of the Board of Directors.
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<PAGE> 23
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 100 Wall Street, Suite 1600, New York, New York
10005.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary against fluctuations in currency values.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEPOSITARY" shall mean The Depository Trust Company, its nominees, and
their respective successors.
"DISINTERESTED DIRECTOR" means, with respect to an Affiliate
Transaction, a member of the Board of Directors who has no direct or indirect
financial interest, and whose employer has no direct or indirect financial
interest, in such Affiliate Transaction.
"DISQUALIFIED STOCK" means any Capital Stock which, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
date on which the Securities mature.
"EBITDA" means, for any period, without duplication, Consolidated Net
Income for such period, increased (to the extent deducted in determining
Consolidated Net Income) by the sum of (i) Consolidated Interest Expense, (ii)
income taxes (other than income taxes (either positive or negative) attributable
to extraordinary and non-recurring gains or losses or gains or losses
attributable to asset sales not in the ordinary course of business), (iii)
depreciation and depletion expense, (iv) amortization expense and (v) all other
non-cash items reducing Consolidated Net Income less all non-cash items
increasing Consolidated Net Income (other than, in each case, minority interests
which shall, in all cases, be excluded from the calculation of EBITDA) all as
determined on a consolidated basis for the Company and its Restricted
Subsidiaries in conformity with GAAP.
"EBITDA/INTEREST RATIO" means the ratio of (i) EBITDA for the Reference
Period immediately prior to the date of the transaction giving rise to the need
to calculate the EBITDA/Interest Ratio (the "TRANSACTION DATE") to (ii)
Consolidated Interest Expense for such Reference Period. In making the foregoing
calculation, (a) pro forma effect shall be given to (1) any Indebtedness
Incurred subsequent to the end of such Reference Period, (2) any Indebtedness
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<PAGE> 24
Incurred during such Reference Period to the extent such Indebtedness is
outstanding on the Transaction Date and (3) any Indebtedness to be Incurred on
the Transaction Date, in each case as if such Indebtedness had been Incurred on
the first day of such Reference Period and after giving effect to the
application of the proceeds thereof; (b) Consolidated Interest Expense
attributable to interest or dividends on any Indebtedness (whether existing or
being Incurred) computed on a pro forma basis and bearing a floating interest or
dividend rate shall be computed as if the rate in effect on the date of
computation (taking into account any Interest Rate Agreement applicable to such
Indebtedness if such Interest Rate Agreement has a remaining term in excess of
12 months) had been the applicable rate for the entire period; (c) there shall
be excluded from Consolidated Interest Expense any Consolidated Interest Expense
related to any amount of Indebtedness that was outstanding during such Reference
Period or thereafter but that is not outstanding or is to be repaid on the
Transaction Date, except for Consolidated Interest Expense accrued (as adjusted
pursuant to clause (b)) during such Reference Period under a revolving credit or
similar arrangement to the extent of the commitment thereunder (or under any
successor revolving credit or similar arrangement) on the Transaction Date; and
(d) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions
that occur during such Reference Period or thereafter and on or prior to the
Transaction Date as if they had occurred on the first day of such Reference
Period.
"EVENT OF DEFAULT" means any event or condition specified as such in
Section 4.01 which shall have continued for the period of time, if any, therein
designated.
"EXCESS PROCEEDS" has the meaning provided in Section 3.12.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as it may be
amended and any successor act thereto.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Securities for Securities pursuant to the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean a registration
statement relating to an Exchange Offer on an appropriate form and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE SECURITIES" means any securities of the Company to be offered
to Securityholders in exchange for Securities pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Securities containing terms identical to
the Securities for which they are exchanged (except that (i) interest thereon
shall accrue from the last date on which interest was paid on the Securities or,
if no such
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interest has been paid, from the date of issuance of the Securities
and (ii) the Exchange Securities will contain the alternative third paragraph
appearing on the reverse of the Securities in the form recited above and will
not contain terms with respect to transfer restrictions or the additional
interest provisions.
"GAAP" means, with respect to any determination to be made pursuant to
the terms of this Indenture, such accounting principles as are generally
accepted in the United States at the time of such determination.
"GLOBAL SECURITIES" has the meaning provided in Section 2.04.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of any part
or all of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"HOLDER", "HOLDER OF SECURITIES", "SECURITYHOLDER" or other similar
terms means the registered holder of any Security.
"INCUR" means with respect to any Indebtedness, to incur, create,
issue, assume, guarantee or otherwise become liable for or with respect to or
extend the maturity of or become responsible for, the payment of, contingently
or otherwise, such Indebtedness; provided that neither the accrual of interest
(whether such interest is payable in cash or kind) nor the accretion of original
issue discount shall be considered an Incurrence of Indebtedness; provided
further that (i) in the case of any Indebtedness of the Company to any
Restricted Subsidiary, such Indebtedness shall be deemed to have been Incurred
by the Company for purposes of the provisions of this Indenture described in
Section 3.08 at the time such Indebtedness is sold, transferred or otherwise
disposed of by such Restricted Subsidiary or such Restricted Subsidiary is
designated as an Unrestricted Subsidiary or otherwise ceases to be a Restricted
Subsidiary, (ii) in the case of any Indebtedness of a Restricted Subsidiary to
the Company or another Restricted Subsidiary, such Indebtedness shall be deemed
to have been Incurred by such Restricted Subsidiary for purposes of the
provisions of this Indenture described in Section 3.08 at the time such
Indebtedness is sold, transferred or otherwise disposed of by the Company or
such other Restricted Subsidiary or the Restricted Subsidiary holding such
Indebtedness is designated as an Unrestricted Subsidiary or otherwise ceases to
be a Restricted Subsidiary and (iii) any Indebtedness of an Unrestricted
Subsidiary that ceases to be Non-Recourse Indebtedness shall be deemed to have
been Incurred by such Unrestricted Subsidiary at the time of such cessation.
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<PAGE> 26
"INDEBTEDNESS" means, without duplication, with respect to any person,
(i) all obligations of such person (a) in respect of borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), (b) evidenced by bonds, notes, debentures or similar
instruments, (c) representing the balance deferred and unpaid of the purchase
price of any property or services (excluding accounts payable or other
obligations arising in the ordinary course of business), (d) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (e) for
the payment of money relating to a Capitalized Lease Obligation, or (f)
evidenced by a letter of credit or reimbursement obligation of such person with
respect to any letter of credit (regardless of whether such reimbursement
obligation is to the issuer of the letter of credit or another person); (ii) all
net obligations of such person under Interest Rate Agreements, Commodity Swap
Agreements and Currency Agreements; (iii) the undischarged balance of any
production payments as to which such person is obligated or its property is
dedicated; (iv) all liabilities of others of the kind described in the preceding
clause (i), (ii) or (iii) that such person has guaranteed or that are otherwise
its legal liability; (v) Indebtedness (as otherwise defined in this definition)
of others secured by a Lien on any asset of such person, whether or not such
Indebtedness is assumed by such person (provided that if the obligations so
secured have not been assumed in full by such person or are not otherwise such
person's legal liability in full, then such obligations shall be deemed to be in
an amount equal to the greater of (a) the lesser of (1) the full amount of such
obligations and (2) the fair market value of such asset, as determined in good
faith by the board of directors of such person, which determination shall be
evidenced by a board resolution, and (b) the amount of obligations as have been
assumed by such person or which are otherwise such person's legal liability);
and (vi) the liquidation preference and any mandatory redemption payment
obligations in respect of (a) all Redeemable Stock of such person and its
Subsidiaries and (b) all Preferred Stock of such Subsidiaries.
"INDENTURE" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or
supplemented.
"INDEPENDENT FINANCIAL ADVISOR" means a nationally recognized
investment banking firm (i) which does not (and whose directors, officers,
employees and Affiliates do not) have a direct or indirect material financial
interest in the Company and (ii) which, in the sole judgment of the Board of
Directors, is otherwise independent and qualified to perform the task for which
such firm is being engaged.
"INDEPENDENT PETROLEUM ENGINEERS" means, with respect to any person, a
nationally recognized petroleum engineering firm (i) which does not (and whose
directors, officers, employees and Affiliates do not) have a direct or indirect
material financial interest in such person and (ii) which, in the sole judgment
of the
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<PAGE> 27
board of directors of such person, is otherwise independent and qualified to
perform the task for which such firm is being engaged.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"ACCREDITED INVESTOR" as that term is defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"INTEREST PAYMENT DATE" means each semiannual interest payment date on
May 1 and November 1 of each year, commencing May 1, 1998.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate collar agreement or other similar agreement or arrangement
designed to protect the Company or any of its Restricted Subsidiaries against
fluctuations in interest rates.
"INTEREST RECORD DATE" for the Interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the April 15 or
October 15 (whether or not a Business Day) as the case may be, next preceding
such Interest Payment Date.
"INVESTMENT" means, with respect to any person, any investment in
another person, whether by means of a share purchase, capital contribution,
loan, advance (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet of such
person) or similar credit extension constituting Indebtedness of such other
person and any guarantee of obligations of any other person.
"LIEN" means any mortgage, lien, security interest, charge or
encumbrance of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give any
security interest).
"INITIAL PURCHASERS" means J.P. Morgan Securities Inc., Donaldson,
Lufkin & Jenrette Securities Corporation and Morgan Stanley & Co.
Incorporated.
"MATERIAL SUBSIDIARY" means, at the time of determination, any
Restricted Subsidiary that, together with its Subsidiaries, (i) accounted for
more than 5% of (a) the revenues of the Company and its Restricted Subsidiaries,
on a consolidated basis, or (b) EBITDA, in each case for the most recently
completed fiscal year of the Company for which financial information is
available or (ii) owned more than 5% of the assets of the Company and its
Restricted Subsidiaries, on a consolidated basis, as at the end of such fiscal
year, all as shown on or derived from the consolidated financial statements of
the Company for such fiscal year.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents (including proceeds from the
sale
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of Publicly Traded Stock and payments in respect of deferred payment obligations
when received in the form of cash or Cash Equivalents), net of (i) brokerage
commissions and other reasonable fees and expenses (including fees and expenses
of counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes payable as a result of such Asset Sale, (iii) payments made to
retire Indebtedness where payment of such Indebtedness is required in connection
with such Asset Sale, (iv) obligations and expenses incurred in connection with
the repatriation to the United States of any proceeds of such Asset Sale, (v) in
the case of any Asset Sale made by a Restricted Subsidiary, any dividend or
distribution of a portion of the proceeds of such Asset Sale to a holder (other
than the Company or another Restricted Subsidiary) of Capital Stock (other than
Preferred Stock) of such Restricted Subsidiary; provided that such dividend is
paid or distribution is made concurrently with the payment of a dividend or
making of a distribution of a portion of such proceeds by such Restricted
Subsidiary to the Company or another Restricted Subsidiary and the amount of
such dividend or distribution does not exceed such holder's pro rata share
(based on such holder's percentage ownership of the outstanding Capital Stock
(other than Preferred Stock) of such Restricted Subsidiary) of the aggregate
amount of the proceeds of such Asset Sale being dividended or distributed and
(vi) appropriate amounts to be provided by the Company or any Restricted
Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against
any liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, pension and other post-employment benefit liabilities,
liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale.
"NET PROCEEDS" means, in the case of any sale by the Company of Capital
Stock, the aggregate net cash proceeds received by the Company, after payment of
expenses, commissions, discounts and any other transaction costs incurred in
connection therewith.
"NON-RECOURSE INDEBTEDNESS" means, with respect to any Unrestricted
Subsidiary, Indebtedness of such Unrestricted Subsidiary as to which (i) neither
the Company nor any Restricted Subsidiary (a) provides credit support including
any undertaking, agreement or instrument which would constitute Indebtedness or
(b) is directly or indirectly liable for such Indebtedness and (ii) no default
with respect to such Indebtedness (including any rights which the holders
thereof may have to take enforcement action against such Unrestricted
Subsidiary) would permit (upon notice, lapse of time or both) any holder of any
other Indebtedness of the Company or any Restricted Subsidiary to declare a
default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity.
"NON-U.S. PERSON" means a person who is not a U.S. person, as defined
in Regulation S.
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"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice President (whether or not
designated by a number or numbers or a word or words added before or after the
title "VICE PRESIDENT") and by the Treasurer or the Secretary or any Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 10.05.
"OFFSHORE GLOBAL SECURITIES" has the meaning provided in Section 2.04.
"OFFSHORE PHYSICAL SECURITIES" has the meaning provided in Section
2.04.
"OFFSHORE SECURITIES EXCHANGE DATE" has the meaning provided in
Section 2.04.
"OIL AND GAS BUSINESS" means the exploration for and the development,
acquisition, production, processing, marketing, storage and transportation of
hydrocarbons and other related energy and natural resources businesses and any
activity necessary, appropriate or incidental to the foregoing.
"OIL AND GAS RESERVE ESTIMATE" means, as of any date of determination,
the estimated discounted future net revenues attributable to proved oil and gas
reserves of the Company and its Restricted Subsidiaries calculated in accordance
with the Commission's guidelines (before any state or federal income taxes) as
set forth in the most recently prepared reserve report of the Company and its
Restricted Subsidiaries that has been audited by Independent Petroleum Engineers
(which report shall be prepared as of a date no earlier than the end of the most
recently completed fiscal year of the Company for which financial information is
available) (the "AUDITED REPORT"), decreased, in the case of clause (i) below,
and increased or decreased, as appropriate, in the case of clauses (ii) and
(iii) below, by the Company's petroleum engineers to reflect, as of such date of
determination, the estimated discounted future net revenues attributable to (i)
the ownership interest of any holder (other than the Company or another
Restricted Subsidiary) of Capital Stock (other than Preferred Stock) of any
Restricted Subsidiary (based on such holder's percentage ownership of such
Capital Stock as of such date of determination), but only to the extent such
ownership interest is not otherwise deducted from the discounted future net
revenues of the Company and its Restricted Subsidiaries set forth in the Audited
Report, (ii) proved oil and gas reserves acquired or disposed of since the date
of the Audited Report and (iii) increases or decreases in proved oil and gas
reserves of the Company and its Restricted Subsidiaries due to exploration,
development or exploitation activities or changes in geological conditions since
the date of the Audited Report; provided that such adjustments are calculated in
accordance with the Commission's guidelines by the Company's petroleum engineers
utilizing the prices utilized in, and on a basis otherwise consistent with, the
Audited Report. Notwithstanding the
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<PAGE> 30
foregoing, (1) if the estimated discounted future net revenues from any proved
oil and gas reserves acquired since the date of the Audited Report have been
audited by Independent Petroleum Engineers and a report with respect thereto as
of a date no earlier than the end of the most recently completed fiscal year of
the person from whom such reserves were acquired has been prepared, such report
(or, if a more recent audited reserve report is available, the most recent of
such reports) shall be utilized for purposes of calculating the adjustment to
discounted future net revenues of such person attributable to such acquired
reserves, (2) if the estimated discounted future net revenues of the Company and
its Restricted Subsidiaries, as adjusted pursuant to clauses (ii) and (iii) of
the preceding sentence (excluding any adjustments calculated pursuant to clause
(1) of this sentence) would vary by more than 10% from the discounted future net
revenues of the Company and its Restricted Subsidiaries set forth in the Audited
Report, such adjustments shall be audited by Independent Petroleum Engineers and
(3) so long as Benton-Vinccler is a Restricted Subsidiary, for purposes of
calculating the Oil and Gas Reserve Estimate of the Company and its Restricted
Subsidiaries attributable to Benton-Vinccler as of any date of determination,
the proportionate share of the Company and its Restricted Subsidiaries (based on
their percentage ownership interest of Benton-Vinccler as of such date of
determination) of the estimated discounted future net revenues attributable to
the proved oil and gas reserves subject to the operating service agreement dated
as of July 31, 1992 with Lagoven, S.A. (as amended or supplemented from time to
time and including any successor agreements or arrangements) shall be included
in such Oil and Gas Reserve Estimate on the same basis as such net revenues
would be included if such proved oil and gas reserves were owned by
Benton-Vinccler.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Company or who may be other
counsel satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided for in
Section 10.05, and such others as may reasonably be requested by the Trustee, if
and to the extent required hereby.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof) means the
earlier of (i) the date of such Security or (ii) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"OUTSTANDING", when used with reference to Securities, shall, subject
to the provisions of Section 6.04 and Article 12, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this
Indenture, except\
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside, segregated and held in trust by the Company (if the Company shall act as
its own paying agent), provided that if such Securities are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant to the
terms of Section 2.09 (unless proof satisfactory to the Trustee and the Company
is presented that any of such Securities is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Company).
"PERFORMANCE LETTER OF CREDIT" means, with respect to any person, a
letter of credit or bond to secure the performance in any country of any
obligations of such person under any contract entered into in the ordinary
course of such person's Oil and Gas Business; provided that the provision of any
such letter of credit or bond is required by local law or, in the case of any
such letter of credit or bond securing the performance of obligations outside
the United States, is customarily required in connection with contracts relating
to the Oil and Gas Business in such country and, in either case, such letter of
credit or bond requires that any payment thereunder by the issuer thereof be
immediately repaid by such person.
"PERMANENT OFFSHORE GLOBAL SECURITY" has the meaning provided in
Section 2.04.
"PERMITTED BENTON-VINCCLER INDEBTEDNESS" means Indebtedness of
Benton-Vinccler in an aggregate amount not to exceed $25 million at any time
outstanding.
"PERMITTED COMMODITY SWAP AGREEMENTS" means Commodity Swap Agreements
entered into in order to protect the Company or its Restricted Subsidiaries
against fluctuations in oil or gas prices with respect to their current or good
faith estimated future oil and gas production irrespective of whether such
production is owned by the Company or a Restricted Subsidiary or is produced by
the Company or a Restricted Subsidiary pursuant to an arrangement under which
the Company or a Restricted Subsidiary acts as a contractor for a third party
that owns such production.
"PERMITTED COMPANY SECURED INDEBTEDNESS" means secured Indebtedness of
the Company Incurred after the date of this Indenture in an aggregate amount not
to exceed $50 million outstanding at any time less the
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aggregate amount of Permitted Restricted Subsidiary Indebtedness outstanding at
such time.
"PERMITTED GEOILBENT INDEBTEDNESS" means Indebtedness of GEOILBENT
which is non-recourse to the Company and its Restricted Subsidiaries except to
the extent of the pledge of equity interests in GEOILBENT.
"PERMITTED INDEBTEDNESS" means (i) the Securities; (ii) Indebtedness of
the Company and its Restricted Subsidiaries (other than Benton-Vinccler)
outstanding on the date of this Indenture; (iii) obligations of the Company and
its Restricted Subsidiaries pursuant to Interest Rate Agreements, Currency
Agreements and Permitted Commodity Swap Agreements and compensation payable
thereunder; (iv) Indebtedness of the Company to a Restricted Subsidiary or of a
Restricted Subsidiary to the Company or another Restricted Subsidiary (but only
so long as such Indebtedness is held or owned by the Company or a Restricted
Subsidiary); (v) Indebtedness of the Company Incurred for the purpose of
financing the working capital requirements of the Company or any Restricted
Subsidiary in an aggregate amount not to exceed the greater of $10 million or 4%
of the Oil and Gas Reserve Estimate, in each case at any time outstanding; (vi)
Indebtedness (excluding Acquired Indebtedness) of the Company in addition to
Indebtedness permitted by clauses (i) through (v) in an aggregate amount not to
exceed $20 million at any time outstanding; (vii) (a) Indebtedness of
Benton-Vinccler not in excess of $25 million in aggregate principal amount
outstanding which is cash collateralized and (b) Permitted Benton-Vinccler
Indebtedness; (viii) Permitted GEOILBENT Indebtedness; (ix)(a) Secured
Performance Letters of Credit in an aggregate amount not to exceed $30 million
written with respect to which the account party is the Company or any Restricted
Subsidiary; and (b) Performance Letters of Credit with respect to which the
account party is the Company or any Restricted Subsidiary; provided that the
reimbursement obligation of the Company or such Restricted Subsidiary thereunder
is unsecured; (x) unsecured obligations of the Company or any Restricted
Subsidiary to reimburse any other person for all or a portion of such other
person's reimbursement obligations with respect to any Performance Letter of
Credit; provided that such Performance Letter of Credit secures the performance
of obligations of the Company or a Restricted Subsidiary (in addition to any
performance obligations of such other person which such Performance Letter of
Credit may secure) under any contract entered into by the Company or such
Restricted Subsidiary in the ordinary course of its Oil and Gas Business; and
(xi) Indebtedness of the Company or any Restricted Subsidiary the proceeds of
which are used to renew, extend, refinance or repurchase, or Indebtedness of the
Company or any Restricted Subsidiary exchanged for, Indebtedness permitted by
clause (i) or (ii) above so long as (a) the aggregate amount of such new
Indebtedness (or, if such new Indebtedness will be issued at a price less than
the principal amount thereof, the aggregate issue price thereof) would not be
greater than the sum of the aggregate amount of the Indebtedness being renewed,
extended, refinanced, repurchased or exchanged and
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any premium, accrued interest expense, commissions and other transaction costs
incurred in connection with such renewal, extension, refinancing, repurchase or
exchange (but only if such costs are of a kind and in an amount that would
customarily be incurred in connection with such types of transactions), (b) if
the Indebtedness being renewed, extended, refinanced, repurchased or exchanged
is Indebtedness of the Company, such new Indebtedness would be Indebtedness of
the Company and, unless the Indebtedness being renewed, extended, refinanced,
repurchased or exchanged is fully secured, such new Indebtedness would have an
Average Life greater than the Average Life of the Securities and a stated
maturity later than the Stated Maturity of the Securities and (c) such new
Indebtedness would be Subordinated Indebtedness if the Indebtedness renewed,
extended, refinanced, repurchased or exchanged is Subordinated Indebtedness and
such new Subordinated Indebtedness would be subordinated to the Securities at
least to the extent that the Subordinated Indebtedness being renewed, extended,
refinanced, repurchased or exchanged is subordinated to the Securities.
"PERMITTED INVESTMENT" means Investments and expenditures made in the
ordinary course of, and of a nature that is or shall have become customary in,
the Oil and Gas Business as means of actively exploiting, exploring for,
acquiring, developing, processing, gathering, marketing or transporting oil and
gas through agreements, transactions, interests or arrangements which permit a
person to share risks or costs, comply with regulatory requirements regarding
local ownership or satisfy other objectives customarily achieved through the
conduct of the Oil and Gas Business jointly with third parties, including,
without limitation, (i) ownership interests in oil and gas properties or
gathering systems and (ii) Investments and expenditures in the form of or
pursuant to operating agreements, processing agreements, farm-in agreements,
farmout agreements, development agreements, area of mutual interest agreements,
unitization agreements, pooling arrangements, joint bidding agreements, service
contracts, joint venture agreements, partnership agreements (whether general or
limited), subscription agreements, stock purchase agreements and other similar
agreements with third parties (including Unrestricted Subsidiaries).
"PERMITTED LIENS" means Liens upon any real or tangible personal
property securing (i) any Indebtedness of the Company or any Restricted
Subsidiary existing on the date of this Indenture and any renewals, extensions,
refinancings or exchanges of such Indebtedness permitted under this Indenture;
provided that any such Lien securing any renewed, extended, refinanced or
exchanged Indebtedness shall only attach to the property that secured such
Indebtedness prior to such renewal, extension, refinancing or exchange; (ii) any
Permitted Benton-Vinccler Indebtedness; (iii) any Permitted GEOILBENT
Indebtedness, limited to the non-recourse pledge of equity interests in
GEOILBENT; (iv) any Permitted Restricted Subsidiary Indebtedness; (v) any
Permitted Company Secured Indebtedness; (vi) any Permitted Commodity Swap
Agreements; (vii) reimbursement obligations in respect of the letters of credit
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referred to in clause (ix)(a) of the definition of Permitted Indebtedness;
(viii) Indebtedness of Benton-Vinccler referred to in clause (vii)(a) of the
definition of Permitted Indebtedness, limited to cash collateral; and (ix) any
other Indebtedness of the Company or any Restricted Subsidiary required by its
terms to be secured in the event that the Securities are required to be secured
pursuant to the terms of this Indenture; provided that (a) if such other
Indebtedness is Subordinated Indebtedness, the Lien securing such other
Indebtedness shall be subordinated to the Lien securing the Securities to at
least the extent that such Subordinated Indebtedness is subordinated to the
Securities, (b) in no event shall the Lien securing such other Indebtedness be
prior to the Lien securing the Securities and (c) if the Lien securing the
Securities ceases to exist, the Lien securing such other Indebtedness shall also
cease to exist.
"PERMITTED RESTRICTED SUBSIDIARY INDEBTEDNESS" means Indebtedness of
any Restricted Subsidiary (including Permitted Benton-Vinccler Indebtedness but
excluding Indebtedness of Benton-Vinccler referred to in clause (vii)(a) of the
definition of Permitted Indebtedness) Incurred after the date of this Indenture
(other than pursuant to clause (xi) of the definition of Permitted Indebtedness)
in an aggregate amount for all such Restricted Subsidiaries not to exceed $50
million, in each case outstanding at any time less the aggregate amount of
Permitted Company Secured Indebtedness outstanding at such time.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or agency or political subdivision
thereof; provided that the term joint venture shall not include any contractual
arrangement between the Company or any Restricted Subsidiary and one or more
third parties pursuant to which the Company or such Restricted Subsidiary and
such third party or parties agree to share the costs and benefits of exploring
and developing oil and gas properties so long as (i) the interest of the Company
or such Restricted Subsidiary in such properties and the hydrocarbons or other
mineral products derived therefrom is owned directly by the Company or such
Restricted Subsidiary, (ii) such contractual arrangement does not grant any Lien
on the Company's or such Restricted Subsidiary's ownership interest in such
properties or products derived therefrom or permit such third party or parties
to restrict in any manner the ability of the Company or such Restricted
Subsidiary to use, transfer, sell or otherwise dispose of such ownership
interest (excluding, in each case, any agreement to sell such products to such
third party or parties so long as such agreement was negotiated on an
arm's-length basis) and (iii) no independent legal entity is created by such
contractual arrangement.
"PHYSICAL SECURITIES" has the meaning provided in Section 2.04.
"PREFERRED STOCK" means, with respect to any person, Capital Stock or
Redeemable Stock of such person of any class or classes (however designated)
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<PAGE> 35
whether now outstanding or issued after the date of this Indenture, that ranks
prior, as to the payment of dividends or as to the distribution of assets upon
any voluntary or involuntary liquidation of such person, to any other class of
Capital Stock of such person and includes, without limitation, all classes and
series of preferred or preference stock.
"PRINCIPAL" wherever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "AND PREMIUM, IF
ANY".
"PRIVATE PLACEMENT LEGEND" means the legend initially set forth on the
Securities in the form set forth in Section 2.05(a).
"PUBLIC EQUITY OFFERING" means an underwritten primary public offering
of Capital Stock of the Company pursuant to an effective registration statement
under the Securities Act, other than an offering of Disqualified Stock or an
offering pursuant to a registration statement on Form S-8.
"PUBLICLY TRADED STOCK" means, with respect to any person, Voting Stock
of such person which is registered under Section 12 of the Exchange Act and
which is actively traded on The New York Stock Exchange or American Stock
Exchange or in the NASDAQ-National Market.
"QIB" means a "QUALIFIED INSTITUTIONAL BUYER" as defined in Rule 144A.
"REDEEMABLE STOCK" means, with respect to any person, any and all
shares, interests, participations, rights or other equivalents (however
designated) of such person's capital stock or partnership interests whether now
outstanding or issued after the date of this Indenture that by their terms or
otherwise are or may be required to be redeemed prior to the Stated Maturity of
the Securities or are redeemable at the option of the holder thereof (including,
without limitation, upon the happening of any specified event or with the
passage of time) at any time prior to the Stated Maturity of the Securities;
provided that if the only event that could require redemption of any such
securities prior to the Stated Maturity of the Securities is a change in control
of the Company (defined in a manner substantially identical to the definition of
Change in Control in this Indenture) and such right of redemption is expressly
subordinated to the right of the holders of the Securities to require repurchase
of the Securities upon the occurrence of a Change in Control pursuant to the
terms of this Indenture, then such securities shall not be deemed to be
Redeemable Stock.
"REFERENCE PERIOD" means, with respect to any determination to be made
pursuant to the terms of this Indenture, the four full fiscal quarters for which
financial information is available immediately preceding any date upon which
such determination is to be made.
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"REGISTRAR" has the meaning provided in Section 2.06.
"REGISTRATION" means a registered exchange offer for the Securities by
the Company or other registration of the Securities under the Securities Act
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of November 3, 1997, between the Company and the Initial
Purchasers, and certain permitted assigns specified therein.
"REGISTRATION STATEMENT" means the Registration Statement pursuant to
and as defined in the Registration Rights Agreement.
"REGULATION S" means Regulation S under the Securities Act.
"REPAID INVESTMENT" means (i) the amount of any Investment in a person
(which is a Restricted Payment) made by the Company or a Restricted Subsidiary
after the date of this Indenture (a) to the extent such amount has been
unconditionally repaid in cash to the Company or such Restricted Subsidiary
(including any such repayment in the form of a dividend but excluding any
payments of interest) or (b) to the extent of the net proceeds in cash or Cash
Equivalents from the sale thereof and (ii) the amount of any Indebtedness of a
person guaranteed by the Company or a Restricted Subsidiary after the date of
this Indenture (which guarantee is a Restricted Payment) to the extent such
amount has been unconditionally released from such guarantee; provided that in
each case such amount shall not exceed the amount of such Investment as recorded
on the books of the Company or such Restricted Subsidiary in accordance with
GAAP at the time such Investment was made.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means the
chairman of the board of directors, any vice chairman of the board of directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"VICE PRESIDENT"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant vice president, any assistant
cashier, any assistant secretary, any assistant treasurer, or any other officer
or assistant officer of the Trustee customarily performing functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of his
or her knowledge of and familiarity with the particular subject.
"RESTRICTED PAYMENT" means, with respect to any person, (i) the
declaration or payment of any dividend or other distribution in respect of
Capital Stock or Redeemable Stock of such person or any Subsidiary of such
person,
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(ii) any payment on account of the purchase, redemption or other acquisition or
retirement for value of Capital Stock or Redeemable Stock of such person or any
Subsidiary of such person (including options, warrants or other rights to
acquire such Capital Stock or Redeemable Stock), (iii) any payment on account of
the purchase, redemption or other acquisition or retirement for value of, or any
payment in respect of any amendment of the terms of, or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such person or a
Subsidiary of such person prior to the scheduled maturity, any scheduled
repayment of principal or any scheduled sinking fund payment, as the case may
be, of such Subordinated Indebtedness and (iv) any Investment by such person
other than any Investment in Cash Equivalents or any Permitted Investment.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company other than
an Unrestricted Subsidiary; provided that so long as Benton-Vinccler is a direct
or indirect Subsidiary of the Company it shall remain a Restricted Subsidiary.
"RESTRICTED SUBSIDIARY INVESTMENT" means, with respect to any person
that becomes a Restricted Subsidiary, the amount of any Investment in such
person (which is a Restricted Payment) made by the Company or a Restricted
Subsidiary after the date of this Indenture but prior to the time such person
becomes a Restricted Subsidiary; provided that such amount shall not exceed the
amount of such Investment as recorded on the books of the Company or such
Restricted Subsidiary in accordance with GAAP at the time such Investment was
made.
"RULE 144A" means Rule 144A under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as it may be amended
and any successor act thereto.
"SECURITY" or "SECURITIES" means any Security or Securities, as the
case may be, authenticated and delivered under this Indenture. For all purposes
of this Indenture, the term "SECURITIES" shall include any Exchange Securities
to be issued and exchanged for any Securities pursuant to the Registration
Rights Agreement and this Indenture and, for purposes of this Indenture, all
Securities and Exchange Securities shall vote together as one series of
Securities under this Indenture.
"SECURITY REGISTER" has the meaning provided in Section 2.06.
"SENIOR INDEBTEDNESS" means any Indebtedness of the Company (whether
outstanding on the date hereof or hereinafter incurred), unless such
Indebtedness is Subordinated Indebtedness.
"SHELF REGISTRATION STATEMENT" shall mean a Shelf Registration
Statement of the Company pursuant to and as defined in the Registration Rights
Agreement.
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"STATED MATURITY," when used with respect to any Security, means the
date specified in such Security as the fixed date on which the principal of such
Security is due and payable.
"SUBORDINATED INDEBTEDNESS" means any Indebtedness (whether outstanding
on the date hereof or hereinafter incurred) which is subordinate or junior in
right of payment to the Securities.
"SUBSIDIARY" of any person means (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such person, by
one or more Subsidiaries of such person or by such person and one or more
Subsidiaries of such person or (ii) any other person (other than a corporation)
in which such person, directly or indirectly, at the date of determination
thereof, has (x) at least a majority ownership interest or (y) the power to
elect or direct the election of a majority of the directors or other governing
body of such person.
"TEMPORARY OFFSHORE GLOBAL SECURITY" has the meaning provided in
Section 2.04.
"TRUSTEE" means the entity identified as "TRUSTEE" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee.
"TRUST INDENTURE ACT OF 1939" means the Trust Indenture Act of 1939, as
amended, as in force at the date as of which this Indenture was originally
executed, and "TIA", when used in respect of an indenture supplemental hereto,
means such Act as in force at the time such indenture supplemental hereto
becomes effective.
"U.S. GLOBAL SECURITY" has the meaning provided in Section 2.04.
"U.S. PERSON" has the meaning provided in Section 2.05.
"U.S. PHYSICAL SECURITIES" has the meaning provided in Section 2.04.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary of the Company or of
a Restricted Subsidiary (other than Benton-Vinccler) that is designated as an
Unrestricted Subsidiary by a resolution adopted by the Board of Directors in
accordance with the requirements of the following sentence and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Company may designate any
Subsidiary of the Company or of a Restricted Subsidiary (excluding any
Restricted Subsidiary that had been designated as an Unrestricted Subsidiary
prior to its designation as a Restricted Subsidiary but including a newly
acquired or newly formed Subsidiary of the Company or any Restricted Subsidiary)
to be an Unrestricted Subsidiary by a resolution of the Board of Directors, if
immediately after giving effect to such
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designation, (i) the Company could Incur at least $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 3.08 of
this Indenture, (ii) the Company could make an additional Restricted Payment of
$1.00 pursuant to the first paragraph of Section 3.10 of this Indenture, (iii)
such Subsidiary does not own or hold any Capital Stock or Redeemable Stock of,
or any Lien on any property of, the Company or any Restricted Subsidiary and
(iv) such Subsidiary is not liable, directly or indirectly, with respect to any
Indebtedness other than Non-Recourse Indebtedness. The Board of Directors may
designate any Unrestricted Subsidiary (excluding any Unrestricted Subsidiary
that had been a Restricted Subsidiary prior to its designation as an
Unrestricted Subsidiary) to be a Restricted Subsidiary; provided that,
immediately after giving effect to such designation, the Company could Incur at
least $1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 3.08 of this Indenture. Upon any such designation by the
Board of Directors, the Company shall promptly file with the Trustee a copy of a
board resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing.
"VOTING STOCK" means, with respect to any person, securities of any
class or classes of Capital Stock in such person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
board of directors or other governing body of such person but not including
Capital Stock having the right to vote thereon solely upon the happening of a
contingency unless and until such contingency has occurred, and then only so
long as such Capital Stock has voting rights with respect thereto.
"WHOLLY OWNED SUBSIDIARY" means, with respect to any person, any
Subsidiary of such person if all of the Capital Stock (excluding Preferred
Stock) in such Subsidiary (other than any director's qualifying shares) is owned
directly or indirectly by such person.
ARTICLE 2
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.01. Authentication and Delivery of Securities. Upon the
execution and delivery of this Indenture, or from time to time thereafter,
Securities (including Exchange Securities) in an aggregate principal amount not
in excess of the amount specified in the form of Security hereinabove recited
(except as otherwise provided in Section 2.09) may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by both (a) its Chairman of the Board of Directors, or any Vice
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Chairman of the Board of Directors, or its President or any Vice President
(whether or not designated by a number or numbers or a word or words added
before or after the title "VICE PRESIDENT") and (b) by its Treasurer or any
Assistant Treasurer without any further action by the Company.
SECTION 2.02. Execution of Securities. The Securities shall be signed
on behalf of the Company by both (a) its Chairman of the Board of Directors or
any Vice Chairman of the Board of Directors or its President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "VICE PRESIDENT") and (b) by its Treasurer or
any Assistant Treasurer or its Secretary or any Assistant Secretary, under its
corporate seal which may, but need not, be attested. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. The
seal of the Company may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities.
Typographical and other minor errors or defects in any such reproduction of the
seal or any such signature shall not affect the validity or enforceability of
any Security which has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such officer.
SECTION 2.03. Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinabove recited, executed by the Trustee by manual signature of one of its
authorized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Company shall be conclusive evidence that the Security
so authenticated has been duly authenticated and delivered hereunder and that
the Holder is entitled to the benefits of this Indenture.
SECTION 2.04. Form, Denomination and Date of Securities; Payments of
Interest. The Securities and the Trustee's certificates of authentication shall
be substantially in the form recited above; provided that Exchange Securities
(a) shall contain the alternative third paragraph appearing on the reverse of
the Securities in the form recited above and (b) shall not contain terms with
respect to transfer restrictions. The Securities shall be issuable in
denominations provided for in the form of Security recited above. The Securities
shall be numbered, lettered, or
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otherwise distinguished in such manner or in accordance with such plans as the
officers of the Company executing the same may determine with the approval of
the Trustee.
Any of the Securities may be issued with appropriate insertions,
omissions, substitutions and variations, and may have imprinted or otherwise
reproduced thereon such legend or legends, not inconsistent with the provisions
of this Indenture, as may be required to comply with any law or with any rules
or regulations pursuant thereto, including those required by Section 2.05, or
with the rules of any securities market in which the Securities are admitted to
trading, or to conform to general usage.
Each Security shall be dated the date of its authentication, shall bear
interest from the applicable date and shall be payable on the dates specified on
the face of the form of Security recited above.
Securities offered and sold in reliance on Section 4(2) and Rule 144A
shall be issued initially in the form of a single permanent global Security in
registered form, substantially in the form hereinabove recited (the "U.S. GLOBAL
SECURITY"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as herein provided. The
aggregate principal amount of the U.S. Global Security may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Securities offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of a single temporary global
Security in registered form substantially in the form hereinabove recited (the
"TEMPORARY OFFSHORE GLOBAL SECURITY") deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as provided herein. At any time on and after December 12, 1997 (the
"OFFSHORE SECURITIES EXCHANGE DATE"), a single permanent global Security in
registered form substantially in the form hereinabove recited without the
Private Placement Legend (the "PERMANENT OFFSHORE GLOBAL SECURITY"; and together
with the Temporary Offshore Global Security, the "OFFSHORE GLOBAL SECURITIES")
duly executed by the Company and authenticated by the Trustee as provided herein
shall be deposited with the Trustee, as custodian for the Depositary, and the
Registrar shall reflect on its books and records the date and a decrease in the
principal amount of the Temporary Offshore Global Security in an amount equal to
the principal amount of the beneficial interest in the Temporary Offshore Global
Security transferred.
Securities offered and sold in reliance on Regulation D under the
Securities Act shall be issued in the form of permanent certificated Securities
in registered form in substantially the form hereinabove recited (the "U.S.
PHYSICAL
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SECURITIES"). Securities issued pursuant to Section 2.07 in exchange for
interests in the Offshore Global Security following the Offshore Securities
Exchange Date shall be in the form of permanent certificated Securities in
registered form substantially in the form hereinabove recited (the "OFFSHORE
PHYSICAL SECURITIES").
The Offshore Physical Securities and U.S. Physical Securities are
sometimes collectively herein referred to as the "PHYSICAL SECURITIES". The U.S.
Global Security and the Offshore Global Security are sometimes referred to
herein as the "GLOBAL SECURITIES".
The person in whose name any Security is registered at the close of
business on any Interest Record Date with respect to any Interest Payment Date
shall be entitled to receive the interest, if any, payable on such Interest
Payment Date notwithstanding any transfer or exchange of such Security
subsequent to the Interest Record Date and prior to such Interest Payment Date,
except if and to the extent the Company shall default in the payment of the
interest due on such Interest Payment Date, in which case such defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, shall be paid to the persons in whose names outstanding Securities are
registered at the close of business on a subsequent record date (which shall be
not less than five business days prior to the date of such payment) established
by notice given by mail by or on behalf of the Company to the holders of
Securities not less than 15 days preceding such subsequent record date.
SECTION 2.05. Restrictive Legends. (a) Unless and until a Security is
exchanged for an Exchange Security in connection with an effective Registration
pursuant to the Registration Rights Agreement, the U.S. Global Security,
Temporary Offshore Global Security and each U.S. Physical Security shall bear
the following legend on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MANY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT,
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL
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BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE
THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR
TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES OF LESS THAN $250,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH
ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THE SECURITY, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS
AN INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING RESTRICTIONS.
(b) Each Global Security, whether or not an Exchange Security, shall
also bear the following legend on the face thereof:
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UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.06. Registration, Transfer and Exchange. The Securities are
issuable only in registered form. The Company will keep at each office or agency
to be maintained for the purpose as provided in Section 3.02 (the "REGISTRAR") a
register or registers (the "SECURITY REGISTER(S)") in which, subject to such
reasonable regulations as it may prescribe, it will register, and will register
the transfer of, Securities as in this Article provided. Such Security Register
shall be in written form in the English language or in any other form capable of
being converted into such form within a reasonable time. At all reasonable times
such Security Register or Security Registers shall be open for inspection by the
Trustee.
Upon due presentation for registration of transfer of any Security at
each such office or agency, the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities in authorized denominations for a like aggregate
principal amount.
A Holder may transfer a Security only by written application to the
Registrar stating the name of the proposed transferee and otherwise complying
with the terms of this Indenture. No such transfer shall be effected until, and
such transferee shall succeed to the rights of a Holder only upon, final
acceptance and
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registration of the transfer by the Registrar in the Security Register. Prior to
the registration of any transfer by a Holder as provided herein, the Company,
the Trustee, and any agent of the Company shall treat the person in whose name
the Security is registered as the owner thereof for all purposes whether or not
the Security shall be overdue, and neither the Company, the Trustee, nor any
such agent shall be affected by notice to the contrary. Furthermore, any Holder
of a Global Security shall, by acceptance of such Global Security, agree that
transfers of beneficial interests in such Global Security may be effected only
through a book entry system maintained by the Holder of such Global Security (or
its agent) and that ownership of a beneficial interest in the Security shall be
required to be reflected in a book entry. When Securities are presented to the
Registrar or a co-Registrar with a request to register the transfer or to
exchange them for an equal principal amount of Securities of other authorized
denominations (including an exchange of Securities for Exchange Securities), the
Registrar shall register the transfer or make the exchange as requested if the
requirements for such transactions set forth herein are met; provided that no
exchanges of Securities for Exchange Securities shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Securities that are exchanged for Exchange Securities shall be cancelled by the
Trustee. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request.
The Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities (other than any such transfer taxes or
other similar governmental charge payable upon exchanges pursuant to Section
2.11, 7.05 or 11.02). No service charge to any Holder shall be made for any such
transaction.
The Company shall not be required to exchange or register a transfer of
(a) any Securities for a period of 15 days next preceding the first mailing of
notice of redemption of Securities to be redeemed, or (b) any Securities
selected, called or being called for redemption except, in the case of any
Security where public notice has been given that such Security is to be redeemed
in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.07. Book-entry Provisions for Global Securities. (a) The U.S.
Global Security and Offshore Global Security initially shall (i) be registered
in the name of the Depositary for such Global Securities or the nominee of such
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Depositary, (ii) be delivered to the Trustee as custodian for such Depositary
and (iii) bear legends as set forth in Section 2.05.
Members of, or participants in, the Depositary ("AGENT MEMBERS") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under the
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary and the provisions of Section 2.08. In addition, U.S. Physical
Securities and Offshore Physical Securities shall be transferred to all
beneficial owners in exchange for their beneficial interests in the U.S. Global
Security or the Offshore Global Security, respectively, if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the U.S. Global Security or the Offshore Global Security, as the case may
be, and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default of which the Trustee has actual notice
has occurred and is continuing and the Registrar has received a request from the
Depositary to issue such Physical Securities.
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in the
other Global Security will, upon transfer, cease to be an interest in such
Global Security and become an interest in the other Global Security and,
accordingly, will thereafter be subject to all transfer restrictions, if any,
and other procedures applicable to beneficial interests in such other Global
Security for as long as it remains such an interest.
(d) In connection with any transfer of a portion of the beneficial
interests in the U.S. Global Security to beneficial owners pursuant to paragraph
(b) of this Section and Section 2.08(a)(ii), the Registrar shall reflect on its
books and records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more U.S.
Physical Securities of like tenor and amount.
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(e) In connection with the transfer of the entire U.S. Global Security
or Offshore Global Security to beneficial owners pursuant to paragraph (b) of
this Section, the U.S. Global Security or Offshore Global Security, as the case
may be, shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in the U.S. Global Security or Offshore Global Security, as
the case may be, an equal aggregate principal amount of U.S. Physical Securities
or Offshore Physical Securities, as the case may be, of authorized
denominations.
(f) Any U.S. Physical Security delivered in exchange for an interest in
the U.S. Global Security pursuant to paragraph (b) or (d) of this Section shall,
except as otherwise provided by paragraph (e) of Section 2.08, bear the legend
regarding transfer restrictions applicable to the U.S. Physical Security set
forth in Section 2.05.
(g) Any Offshore Physical Security delivered in exchange for an
interest in the Offshore Global Security pursuant to paragraph (b) of this
Section shall, except as otherwise provided by paragraph (e) of Section 2.08,
bear the legend regarding transfer restrictions applicable to the Offshore
Physical Security set forth in Section 2.05.
(h) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.08. Special Transfer Provisions. Unless and until a Security
is exchanged for an Exchange Security in connection with an effective
Registration pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of a Security to any Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons):
(i) The Registrar shall register the transfer of any Security,
whether or not such Security bears the Private Placement Legend, if (x)
the requested transfer is at least two years after the Original Issue
Date of the Securities or (y) the proposed transferee has delivered to
the Registrar (A) a certificate substantially in the form of Exhibit A
hereto and (B) if the principal amount of the Securities being
transferred is less than $250,000 at
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the time of such transfer, an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Securities Act.
(ii) If the proposed transferor is an Agent Member holding a
beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (i) and
(y) instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred and
the Company shall execute, and the Trustee shall authenticate and
deliver, one or more U.S. Physical Certificates of like tenor and
amount.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical Security
or an interest in the U.S. Global Security to a QIB (excluding Non-U.S.
Persons):
(i) If the Security to be transferred consists of (x) U.S.
Physical Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised
the Company and the Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating,
or has otherwise advised the Company and the Registrar in writing, that
it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it
and any such account is a QIB within the meaning of Rule 144A, and is
aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A or (y) an interest in
the U.S. Global Security, the transfer of such interest may be effected
only through the book entry system maintained by the Depositary.
(ii) If the proposed transferee is an Agent Member, and the
Security to be transferred consists of U.S. Physical Securities, upon
receipt by the Registrar of the documents referred to in clause (i) and
instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the U.S.
Global Security in an amount equal to
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the principal amount of the U.S. Physical Securities to be transferred
and the Trustee shall cancel the U.S. Physical Security so transferred.
(c) Transfers of Interests in the Temporary Offshore Global Security.
The following provisions shall apply with respect to registration of any
proposed transfer of interests in the Temporary Offshore Global Security:
(i) The Registrar shall register the transfer of any Security
(x) if the proposed transferee is a Non-U.S. Person and the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit A hereto or (y) if the proposed transferee is a
QIB and the proposed transferor has checked the box provided for on the
form of Security stating, or has otherwise advised the Company and the
Registrar in writing, that the sale has been made in compliance with
the provisions of Rule 144A to a transferee who has signed the
certification provided for on the form of Security stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Security for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance of Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, upon
receipt by the Registrar of the documents referred to in clause (i)(y)
above and instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
U.S. Global Security, in an amount equal to the principal amount of the
Temporary Offshore Global Security to be transferred, and the Trustee
shall decrease the amount of the Temporary Offshore Global Security in
a like amount.
(d) Transfers of Interests in the Permanent Offshore Global Security or
Offshore Physical Securities to U.S. Persons. The following provisions shall
apply with respect to any transfer of interests in the Permanent Offshore Global
Security or Offshore Physical Securities to U.S. Persons: The Registrar shall
register the transfer of any such Security without requiring any additional
certification.
(e) Transfers to Non-U.S. Persons at Any Time. The following provisions
shall apply with respect to any transfer of a Security to a Non-U.S. Person:
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(i) Prior to December 12, 1997, the Registrar shall register
any proposed transfer of a Security to a Non-U.S. Person upon receipt
of a certificate substantially in the form of Exhibit A hereto from the
proposed transferor.
(ii) On and after December 12, 1997, the Registrar shall
register any proposed transfer to any Non-U.S. Person if the Security
to be transferred is a U.S. Physical Security or an interest in the
U.S. Global Security, upon receipt of a certificate substantially in
the form of Exhibit A from the proposed transferor.
(iii)(A) If the proposed transferor is an Agent Member holding
a beneficial interest in the U.S. Global Security, upon receipt by the
Registrar of (x) the documents, if any, required by paragraph (ii) and
(y) instructions in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the U.S.
Global Security in an amount equal to the principal amount of the
beneficial interest in the U.S. Global Security to be transferred, and
(B) if the proposed transferee is an Agent Member, upon receipt by the
Registrar of instructions given in accordance with the Depositary's and
the Registrar's procedures, the Registrar shall reflect on its books
and records the date and an increase in the principal amount of the
Offshore Global Security in an amount equal to the principal amount of
the U.S. Physical Securities or the U.S. Global Security, as the case
may be, to be transferred, and the Trustee shall cancel the Physical
Security, if any, so transferred or decrease the amount of the U.S.
Global Security, as the case may be.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless either (i) the circumstances contemplated by
the fifth paragraph of Section 2.04 or paragraphs (a)(i)(x) or (e)(ii) of this
Section 2.08 exists or (ii) there is delivered to the Registrar an Opinion of
Counsel reasonably satisfactory to the Company and the Trustee to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act.
(g) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture. The Registrar shall not register a transfer of any Security
unless such
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transfer complies with the restrictions on transfer of such Security set forth
in this Indenture. In connection with any transfer of Securities, each Holder
agrees by its acceptance of the Securities to furnish the Registrar or the
Company such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made pursuant
to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Company with
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.07 or this Section 2.08
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated,
defaced or be apparently destroyed, lost or stolen, the Company in its
discretion may execute, and upon the written request of any officer of the
Company, the Trustee shall authenticate and deliver, a new Security, bearing a
number not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and substitution for the Security
so apparently destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Company and to the Trustee and any
agent of the Company or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft evidence to their satisfaction of
the apparent destruction, loss or theft of such Security and of the ownership
thereof.
Upon the issuance of any substitute Security, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith. In case any Security
which has matured or is about to mature, or has been called for redemption in
full, shall become mutilated or defaced or be apparently destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Company and to the Trustee and any agent of the Company or the
Trustee such security or indemnity as any of them may require to save each of
them harmless from all risks, however remote, and, in every case of apparent
destruction, loss or theft, the applicant shall also furnish to the Company and
the Trustee and any agent of the Company or the Trustee evidence to their
satisfaction of the apparent destruction, loss or theft of such Security and of
the ownership thereof.
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Every substitute Security issued pursuant to the provisions of this
Section by virtue of the fact that any Security is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the apparently destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities duly authenticated
and delivered hereunder. All Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced, or
apparently destroyed, lost or stolen Securities and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10. Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, if surrendered to the Company or any agent of the Company or the
Trustee, shall be delivered to the Trustee for cancellation or, if surrendered
to the Trustee, shall be cancelled by it; and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall destroy cancelled Securities held by it and deliver
a certificate of destruction to the Company. If the Company shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee for cancellation.
SECTION 2.11. Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and the Trustee shall
authenticate and deliver temporary Securities (printed, lithographed,
typewritten or otherwise reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities shall be issuable as registered Securities
without coupons, of any authorized denomination, and substantially in the form
of the definitive Securities but with such omissions, insertions and variations
as may be appropriate for temporary Securities, all as may be determined by the
Company with the concurrence of the Trustee. Temporary Securities may contain
such reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Company shall execute and shall furnish definitive Securities and thereupon
temporary Securities may be surrendered in exchange therefor without charge at
each office or agency to be maintained by the Company for the purpose pursuant
to Section 3.02, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities a like aggregate principal amount of definitive
Securities of authorized
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denominations. Until so exchanged the temporary Securities shall be entitled to
the same benefits under this Indenture as definitive Securities.
SECTION 2.12. CUSIP and CINS Numbers. The Company in issuing the
Securities may use "CUSIP" and "CINS" numbers (if then generally in use), and
the Trustee shall use CUSIP numbers or CINS numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; provided that any
such notice shall state that no representation is made as the correctness of
such numbers either as printed on the Securities or as contained in any notice
of redemption or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities.
ARTICLE 3
COVENANTS OF THE COMPANY AND THE TRUSTEE
SECTION 3.01. Payment of Principal and Interest. The Company covenants
and agrees that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities at the place or places, at
the respective times and in the manner provided in the Securities. Each
installment of interest on the Securities may be paid by mailing checks for such
interest payable to or upon the written order of the holders of Securities
entitled thereto as they shall appear on the registry books of the Company, or
by wire transfer to such holders in immediately available funds, to such bank or
other entity in the continental United States as shall be designated by such
holders and shall have appropriate facilities for such purpose, or in accordance
with the standard operating procedures of the Depositary.
SECTION 3.02. Offices for Payments, Etc. So long as any of the
Securities remain outstanding, the Company will maintain in the City of New
York, the following: (a) an office or agency where the Securities may be
presented for payment, (b) an office or agency where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) an office or agency where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. The Company hereby
initially designates the Corporate Trust Office of the Trustee as the office or
agency for each such purpose. In case the Company shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office.
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SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 5.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.04. Paying Agents. Whenever the Company shall appoint a
paying agent other than the Trustee, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest on the Securities (whether such sums
have been paid to it by the Company or by any other obligor on the Securities)
in trust for the benefit of the holders of the Securities or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities) to make any payment of the principal
of or interest on the Securities when the same shall be due and payable, and
(c) pay any such sums so held in trust by it to the Trustee upon the
Trustee's written request at any time during the continuance of the failure
referred to in clause (b) above.
The Company will, prior to each due date of the principal of or
interest on the Securities, deposit with the paying agent a sum sufficient to
pay such principal or interest, and (unless such paying agent is the Trustee)
the Company will promptly notify the Trustee of any failure to take such action.
If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of or interest on the Securities, set aside,
segregate and hold in trust for the benefit of the holders of the Securities a
sum sufficient to pay such principal or interest so becoming due. The Company
will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge of
this Indenture or for any other reason, pay or cause to be paid to the Trustee
all sums held in trust by the Company or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section are subject to the provisions
of Sections 9.03 and 9.04.
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SECTION 3.05. Certificates to Trustee. (a) The Company will deliver to
the Trustee within 90 days after the end of each fiscal year of the Company a
brief certificate (which need not comply with Section 10.05) from the principal
executive, financial or accounting officer of the Company as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture (such compliance to be determined without regard to any period of
grace or requirement of notice provided under this Indenture).
(b) The Company will deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or a Default, an Officers'
Certificate setting forth the details of such Event of Default or Default, and
the action which the Company proposes to take with respect thereto.
(c) The Company will deliver to the Trustee within 90 days after the
end of each fiscal year of the Company a written statement by the Company's
independent public accountants stating (i) that their audit examination has
included a review of the terms of this Indenture and the Securities as they
relate to accounting matters, and (ii) whether, in connection with their audit
examination, any Default has come to their attention and, if such a Default has
come to their attention, specifying the nature and period of the existence
thereof.
SECTION 3.06. Securityholders' Lists. If and so long as the Trustee
shall not be the Registrar, the Company will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the
names and addresses of the holders of the Securities pursuant to Section 312 of
the Trust Indenture Act (a) semi-annually not more than 15 days after each
Interest Record Date as of such Interest Record Date, and (b) at such other
times as the Trustee may request in writing, within thirty days after receipt by
the Company of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 3.07. Reports by the Trustee. Any Trustee's report required
under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted
within 45 days of each April 15, commencing with April 15, 1997, and shall be
dated as of a date convenient to the Trustee no more than 60 nor less than 45
days prior thereto.
SECTION 3.08. Limitation on Indebtedness. The Company will not, and
will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness
(including any Acquired Indebtedness) unless (a) no Default or Event of Default
under this Indenture shall have occurred and be continuing at the time or as a
consequence of the Incurrence of such Indebtedness, (b) after giving effect
thereto (including, in connection with any acquisition being financed through
the Incurrence of such Indebtedness, any Acquired Indebtedness and any proved
oil
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and gas reserves being acquired in connection therewith) the EBITDA/Interest
Ratio would be greater than 3.0 to 1.0, (c) in the event such Indebtedness would
be Incurred by the Company but would not be Permitted Company Secured
Indebtedness, such Indebtedness would have an Average Life greater than the
Average Life of the Securities and a stated maturity later than the Stated
Maturity of the Securities and (d) in the event such Indebtedness would be
Incurred by a Restricted Subsidiary, such Indebtedness would also qualify as
Permitted Restricted Subsidiary Indebtedness.
Notwithstanding the foregoing, the Company and its Restricted
Subsidiaries may Incur Permitted Indebtedness if no Default or Event of Default
shall have occurred and be continuing at the time or as a consequence of the
Incurrence of such Indebtedness.
Prior to the Incurrence of any Indebtedness by the Company or any
Restricted Subsidiary other than Permitted Indebtedness, the Company shall file
an Officers' Certificate with the Trustee setting forth the date such
Indebtedness is proposed to be Incurred and the EBITDA/Interest Ratio.
For purposes of calculating the amount of any Indebtedness of the
Company and its Restricted Subsidiaries, any Indebtedness of a Restricted
Subsidiary that is fully and unconditionally guaranteed by the Company or
secured by a deposit of cash or Cash Equivalents of the Company shall be deemed
to be Indebtedness of such Restricted Subsidiary.
SECTION 3.09. Limitation on Indebtedness of Unrestricted Subsidiaries.
The Company will not permit any Unrestricted Subsidiary to Incur any
Indebtedness (including Acquired Indebtedness) other than Non-Recourse
Indebtedness.
SECTION 3.10. Limitation on Restricted Payments. The Company will not,
and will not permit any of its Restricted Subsidiaries to, directly or
indirectly, make any Restricted Payment, if at the time of such Restricted
Payment or after giving effect to such Restricted Payment (a) the Company would
not be able to Incur at least $1.00 of additional Indebtedness (excluding
Permitted Indebtedness) pursuant to the provisions of Section 3.08 of this
Indenture and (b) the aggregate amount expended for all Restricted Payments
(excluding any payments permitted by clauses (ii) through (ix) of the
immediately succeeding paragraph) (the amount of any such Restricted Payment, if
other than cash, as determined by the Board of Directors, whose determination
shall be evidenced by a board resolution which resolution shall promptly be
filed with the Trustee for its records) exceeds the sum of:
(i) 50% of the aggregate Consolidated Net Income of the
Company and its Restricted Subsidiaries (or, if such aggregate
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Consolidated Net Income shall be a loss, minus 100% of such loss)
accrued for the period (taken as one accounting period) beginning on
July 1, 1996 and ending on the last day of the Company's last fiscal
quarter ending prior to the date of such proposed Restricted Payment,
plus
(ii) 100% of the aggregate Net Proceeds received by the
Company after June 30, 1996 from the issuance and sale (other than to a
Subsidiary of the Company) of (1) Capital Stock (including options,
warrants or other rights to acquire Capital Stock) other than any such
Capital Stock convertible into or exchangeable for (whether at the
option of the Company or the holder thereof) a security other than
Capital Stock and other than any such Capital Stock issued for any
purpose specified in clauses (vi) or (vii) of the succeeding paragraph
and (2) Indebtedness convertible into or exchangeable for Capital Stock
but only to the extent such Indebtedness has been converted or
exchanged, plus
(iii) the aggregate amount of any Repaid Investments and
Restricted Subsidiary Investments but only to the extent such amount
did not otherwise increase the amount available for Restricted Payments
pursuant to (i) above or clause (iv) of the immediately succeeding
paragraph, plus
(iv) $15,000,000.
The foregoing provisions shall not be violated by reason of (i) the
payment of any dividend within 60 days after the date of declaration thereof, if
at the date of declaration such payment would comply with the foregoing
provision, (ii) any Investment in the Company by any Restricted Subsidiary and
any Investment in any Restricted Subsidiary or any person which concurrently
with such Investment becomes a Restricted Subsidiary by the Company or another
Restricted Subsidiary, (iii) any dividend payable to the Company by any
Restricted Subsidiary or to any Restricted Subsidiary by another Restricted
Subsidiary, (iv) any dividend payable to a holder (other than the Company or
another Restricted Subsidiary) of Capital Stock (other than Preferred Stock) of
a Restricted Subsidiary; provided that such dividend is paid concurrently with
the payment of a dividend by such Restricted Subsidiary to the Company or
another Restricted Subsidiary and the amount of such dividend does not exceed
such holder's pro rata share (based on such holder's percentage ownership of the
outstanding Capital Stock (other than Preferred Stock) of such Restricted
Subsidiary) of the aggregate amount of the dividend payable to all holders of
Capital Stock of such Restricted Subsidiary, (v) any dividend, distribution or
other payment on or with respect to Capital Stock of the Company to the extent
payable solely in shares of Capital Stock of the Company, (vi) any purchase,
redemption or other acquisition or retirement for value or any defeasance of any
Subordinated Indebtedness, in exchange for, by conversion into or from the Net
Proceeds of the substantially concurrent sale
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(other than to a Subsidiary of the Company) of Capital Stock of the Company or
new Subordinated Indebtedness; provided the Average Life of such new
Subordinated Indebtedness is greater than the Average Life of the Securities,
the stated maturity of such new Subordinated Indebtedness is later than the
Stated Maturity of the Securities and the new Subordinated Indebtedness is
subordinated to the Securities to at least the extent that the Subordinated
Indebtedness being purchased, redeemed, acquired, retired or defeased was
subordinated to the Securities, (vii) any purchase, redemption or other
acquisition or retirement for value of any shares of Capital Stock of the
Company in exchange for, by conversion into or from the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Capital Stock of the Company, (viii) any Investment in a person that represents
the portion of the consideration for an Asset Sale that is not, and is not
required to be pursuant to the provisions of Section 3.12 of this Indenture,
cash or Cash Equivalents and (ix) payments or distributions pursuant to or in
connection with a consolidation, merger or transfer of assets that complies with
the provisions of Article Eight; provided that, in the case of any of the
foregoing, no Default or Event of Default has occurred and is continuing or
shall occur as a consequence thereof.
SECTION 3.11. Limitation on Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, directly or indirectly, enter
into any transaction or series of related transactions (including, without
limitation, the sale, purchase, exchange or lease of assets, property or
services) (such a transaction or series of related transactions, an "AFFILIATE
TRANSACTION") with (a) any Affiliate of the Company or any Subsidiary or (b) any
officer, director or employee of the Company or any Subsidiary or any Affiliate
thereof unless (i) such Affiliate Transaction is on terms that are no less
favorable to the Company or such Subsidiary, as the case may be, than those that
would have been available in a comparable arm's-length transaction with an
unaffiliated third party and (ii) (a) with respect to any Affiliate Transaction
involving aggregate payments equal to or in excess of $1 million (or, in the
case of any loan or advance to any officer, director or employee of the Company
or its Restricted Subsidiaries, $100,000), but less than $5 million, such
Affiliate Transaction shall have received the approval of a majority of the
Disinterested Directors (as evidenced by a board resolution of such
Disinterested Directors which resolution shall promptly be filed with the
Trustee) and (b) with respect to any Affiliate Transaction involving aggregate
payments equal to or greater than $5 million, the Company shall have obtained a
written opinion of an Independent Financial Advisor stating that the terms of
such Affiliate Transaction are fair to the Company or the Subsidiary, as the
case may be, from a financial point of view which opinion shall promptly be
filed with the Trustee.
The foregoing limitations shall not apply to (i) any transaction
between the Company and any Restricted Subsidiary or between Restricted
Subsidiaries, (ii) the payment of reasonable and customary regular fees to
directors of the Company
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who are not employees of the Company, (iii) any employment contract to which any
officer, director or employee is a party or stock option plan or grant of any
option thereunder to any officer, director or employee; provided that any such
agreement or arrangement (or series of related agreements or arrangements)
involving aggregate payments (or in the case of any option grant, with an
aggregate exercise price) equal to or in excess of $100,000 shall have received
the approval of the Compensation Committee of the Board of Directors (as
evidenced by a resolution of such Committee which resolution shall promptly be
filed with the Trustee) which Committee shall be comprised of Disinterested
Directors, or (iv) any Permitted Investment or any Restricted Payments not
prohibited by the provisions of Section 3.10.
SECTION 3.12. Disposition of Proceeds of Asset Sales. (a) The Company
will not, and will not permit any Restricted Subsidiary to, make any Asset Sale
unless (i) such Asset Sale is for not less than the fair market value of the
properties and assets sold, (ii) at least 85% of the consideration (not
including the assumption of any Indebtedness of the Company or any Restricted
Subsidiary (other than Subordinated Indebtedness)) consists of cash, Cash
Equivalents or Publicly Traded Stock (so long as prior to such Asset Sale the
Board of Directors has made a determination as evidenced by a board resolution
(which resolution shall promptly be filed with the Trustee), to sell such
Publicly Traded Stock for cash within ten Business Days after the date of such
Asset Sale and such Publicly Traded Stock does not constitute more than 30% of
such 85%), except (A) in the case of an Asset Sale involving oil and gas
properties, the consideration may consist solely or in part of tangible
properties or direct or indirect interests in tangible properties to be used in
the Company's or its Restricted Subsidiaries' Oil and Gas Business ("TANGIBLE
BUSINESS PROPERTIES") having a fair market value at least equal to the fair
market value of the assets exchanged and (B) the Company and its Restricted
Subsidiaries may enter into farmout transactions consistent with industry
standards and otherwise in accordance with the terms of this Indenture
including, but not limited to, the provisions of Section 3.11, (iii) unless
prior to the date of such Asset Sale the Board of Directors has made a
determination, as evidenced by a board resolution (which resolution shall
promptly be filed with the Trustee), to use all of the Net Cash Proceeds of such
Asset Sale that consist of cash and Cash Equivalents to permanently repay or
prepay Senior Indebtedness or Indebtedness of a Restricted Subsidiary within
thirty days after the date of such Asset Sale, the Company could Incur an
additional $1.00 of Indebtedness (other than Permitted Indebtedness) pursuant to
Section 3.08 of this Indenture, (iv) within ten Business Days after the date of
such Asset Sale, any Publicly Traded Stock required by a board resolution to be
sold for cash, is sold for cash and (v) the requirements set forth below are
met. For purposes of the foregoing, in the case of any required fair market
value determination with respect to any Asset Sale or Tangible Business
Properties or Publicly Traded Stock acquired in connection with such Asset Sale
having a fair market value in excess of $5 million, such determination
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shall be made by the Board of Directors as evidenced by a board resolution which
resolution shall promptly be filed with the Trustee.
Subject to clause (iii) above, within twelve months of any Asset Sale,
the Company shall either (x) apply or cause the application of an amount equal
to the Net Cash Proceeds of such Asset Sale, or a portion thereof, to the
permanent repayment or prepayment of Senior Indebtedness or Indebtedness of any
Restricted Subsidiary or (y) invest such Net Cash Proceeds, or a portion
thereof, in the acquisition or development of Tangible Business Properties. The
amount of such Net Cash Proceeds not applied, used or invested as set forth in
clause (x) or (y) above shall constitute "EXCESS PROCEEDS."
(b) If the aggregate amount of Excess Proceeds, together with any
remaining Excess Proceeds from any prior Asset Sale, equals or exceeds $25
million, the Company shall so notify the Trustee in writing and shall offer to
purchase from all holders of the Securities (an "ASSET SALE OFFER"), and shall
purchase from Holders accepting such Asset Sale Offer on the date fixed for such
Asset Sale Offer (the "ASSET SALE OFFER DATE"), the maximum amount (expressed in
integral multiples of aggregate principal amount of $1,000) of Securities that
may be purchased out of the Excess Proceeds, in accordance with the procedures
set forth in this Section, at an offer price in cash (the "ASSET SALE OFFER
PRICE") in an amount equal to 100% of the principal amount thereof plus accrued
and unpaid interest, if any, to any Asset Sale Offer Date; provided that any
semi-annual payment of interest becoming due on the Asset Sale Offer Date shall
be payable to the holders of such Securities registered as such on the relevant
Interest Record Date subject to the terms and provisions of Section 2.04 hereof.
(c) Promptly, and in any event within 30 days after the date upon which
the Company becomes obligated to make an Asset Sale Offer, the Company shall be
obligated to deliver to the Trustee and send, by first-class mail, postage
prepaid to each Holder, a written notice stating:
(i) that the Company is obligated to make an Asset Sale Offer;
(ii) the Asset Sale Offer Date, which shall be not less than
30 nor more than 60 days after such notice;
(iii) the aggregate principal amount of the outstanding
Securities offered to be purchased by the Company pursuant to the Asset
Sale Offer (the "PURCHASE AMOUNT");
(iv) the Asset Sale Offer Price;
(v) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security
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tendered must be tendered in an integral multiple of $1,000 principal
amount;
(vi) the place or places where Securities are to be
surrendered for tender pursuant to the Asset Sale Offer;
(vii) that interest on any Security not tendered or tendered
but not purchased by the Company pursuant to the Asset Sale Offer will
continue to accrue;
(viii) that on the Asset Sale Offer Date the Asset Sale Offer
Price will become due and payable upon each Security accepted for
payment pursuant to the Asset Sale Offer and that interest thereon
shall cease to accrue on and after the Asset Sale Offer Date;
(ix) that each Holder electing to tender a Security pursuant
to the Asset Sale Offer will be required to surrender such Security at
the place or places specified in the Asset Sale Offer prior to the
close of business on the Asset Sale Offer Date (such Security being, if
the Company or the Trustee so requires, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing);
(x) that Holders will be entitled to withdraw all or any
portion of the Securities tendered if the Company (or its paying agent)
receives, not later than the close of business on the Asset Sale Offer
Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Security the Holder
tendered, the certificate number of the Security the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his
tender;
(xi) that (A) if Securities in an aggregate principal amount
less than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Asset Sale Offer, the Company shall purchase
all such Securities and (B) if Securities in an aggregate principal
amount in excess of the Purchase Amount are tendered and not withdrawn
pursuant to the Asset Sale Offer, the Company shall purchase Securities
having an aggre gate principal amount equal to the Purchase Amount on a
pro rata basis (with such adjustments as may be deemed appropriate so
that only Securities in denominations of $1,000 or integral multiples
thereof shall be purchased); and
(xii) that in case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the holder of such Security without service
charge, a new
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Security or Securities, of any authorized denomination as requested by
such Holder, in an aggregate principal amount equal to and in exchange
for the unpurchased portion of the Security so tendered.
Such notice shall also contain information concerning the business of
the Company which the Company in good faith believes will enable such Holders to
make an informed decision (which at a minimum will include (A) the most recently
filed Annual Report on Form 10-K (including audited consolidated financial
statements) of the Company, the most recent subsequently filed Quarterly Report
on Form 10-Q and any Current Report on Form 8-K of the Company filed subsequent
to such Quarterly Report, other than Current Reports describing other asset
dispositions otherwise described in the offering materials relating to the
Securities (or corresponding successor reports or reports otherwise required to
be delivered to Holders if the Company is no longer filing reports pursuant to
the Exchange Act), (B) a description of material developments in the Company's
business subsequent to the date of the latest of such Reports and (C) if
material, appropriate pro forma financial information and all instructions and
materials necessary to tender Securities pursuant to the Asset Sale Offer.
(d) On the Asset Sale Offer Date, the Company shall (i) accept for
payment Securities or portions thereof tendered pursuant to the Asset Sale
Offer, (ii) deposit with the Trustee money sufficient to pay the purchase price
of all Securities or portions thereof so tendered and (iii) deliver or cause to
be delivered to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof tendered to the Company.
The Trustee shall promptly mail to the holders of Securities so accepted payment
in an amount equal to the Asset Sale Offer Price, and promptly authenticate and
mail to such Holders a new Security in a principal amount equal to any
unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Asset Sale Offer on or as soon as practicable after
the Asset Sale Offer Date.
(e) To the extent that the aggregate amount of Securities tendered
pursuant to an Asset Sale Offer is less than the Excess Proceeds relating
thereto (such shortfall constituting a "DEFICIENCY"), then the Company may use
such Deficiency, or a portion thereof, for general corporate purposes. Upon
completion of an Asset Sale Offer, the amount of Excess Proceeds shall be reset
at zero.
(f) The Company shall comply with any applicable tender offer rules
then in effect, including Section 14(e) of the Exchange Act and Rule 14e-1
promulgated thereunder (or any successor provisions), in connection with an
Asset Sale Offer. In the event of any conflict between such tender offer rules
and the provisions set forth in this Indenture, such tender offer rules shall
control.
SECTION 3.13. Limitation on Liens Securing Indebtedness. The Company
will not, and will not permit any Restricted Subsidiary to, create, incur,
assume or
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suffer to exist any Lien of any kind upon any of their respective assets or
properties now owned or acquired after the date of this Indenture, or any income
or profits therefrom, securing any Indebtedness of the Company or any Restricted
Subsidiary (other than Permitted Liens) without making provision for all of the
Securities to be equally and ratably secured with (or prior to) such
Indebtedness, provided, however that if such Lien securing such Indebtedness
ceases to exist, such equal and ratable (or prior) Lien for the benefit of the
holders of the Securities shall cease to exist; provided, further, that the Lien
securing any Subordinated Indebtedness shall be subordinated to the Lien
securing the Securities to at least the extent that such Subordinated
Indebtedness is subordinated to the Securities.
SECTION 3.14. Limitation on Conduct of Business. The Company will
operate and will cause its Restricted Subsidiaries to be operated in a manner
such that their business activities will be the Oil and Gas Business.
SECTION 3.15. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary to, create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the ability of any
Restricted Subsidiary to (a) pay dividends or make any other distributions on
Capital Stock of any Restricted Subsidiary or any Redeemable Stock of any
Restricted Subsidiary owned by the Company or any Restricted Subsidiary, (b) pay
any Indebtedness owed to the Company or any Restricted Subsidiary, (c) make any
Investment in the Company or any Restricted Subsidiary or (d) transfer any of
its property or assets to the Company or any Restricted Subsidiary, except (i)
any encumbrance or restriction pursuant to an agreement in effect on the date of
this Indenture, (ii) any encumbrance or restriction with respect to any person
that is not a Restricted Subsidiary on the date of this Indenture, in existence
at the time such person becomes a Restricted Subsidiary and not created in
connection with, or in contemplation of, such person becoming a Restricted
Subsidiary so long as such encumbrance or restriction is not applicable to any
person or the property or assets of any person other than the person becoming a
Restricted Subsidiary, (iii) any encumbrance or restriction pursuant to any
agreement that extends, refinances, renews or replaces any agreement containing
any encumbrance or restriction described in the foregoing clauses (a) and (b),
provided, however, that the terms and conditions of any such encumbrance or
restriction are not less favorable to the holders of the Securities than those
contained in the agreement evidencing the restriction or encumbrance so
extended, refinanced, renewed or replaced, (iv) any encumbrance or restriction
arising under law and (v) any restriction arising under customary non-assignment
and non-subletting clauses in leases. Nothing contained in this paragraph shall
prevent the Company or any Restricted Subsidiary from entering into any
agreement permitting the incurrence of Liens otherwise permitted under the
provisions of Section 3.13 of this Indenture.
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SECTION 3.16. Limitation on Guarantees. The Company will not permit any
Restricted Subsidiary, directly or indirectly, to assume, guarantee or in any
other manner become liable with respect to the payment of any Indebtedness of
the Company, unless such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a guarantee of
the payment of the Securities by such Restricted Subsidiary; provided, however,
in the case of such Restricted Subsidiary's assumption, guarantee, or other
liability with respect to Subordinated Indebtedness, such guarantee, assumption
or other liability shall be subordinated to such Restricted Subsidiary's
guarantee of the Securities to at least the extent that such Subordinated
Indebtedness is subordinated to the Securities; and provided, further, that the
provisions of this paragraph shall not be applicable to any guarantee,
assumption or other liability with respect to the payment of any Indebtedness of
the Company by any Restricted Subsidiary (a) in existence on the date of this
Indenture, (b) to the extent such Indebtedness of the Company could be Incurred
by such Restricted Subsidiary as Permitted Restricted Subsidiary Indebtedness,
or (c) that (x) existed at the time such person became a Restricted Subsidiary
of the Company and (y) was not Incurred in connection with, or in contemplation
of, such person becoming a Restricted Subsidiary. Notwithstanding the foregoing,
any such guarantee of the Securities by a Restricted Subsidiary shall provide by
its terms that it shall be automatically and unconditionally released and
discharged upon the release or discharge of such guarantee of such Indebtedness,
other than a release or discharge by, or as a result of, any payment under such
guarantee by such Restricted Subsidiary.
SECTION 3.17. Change in Control. (a) If there shall have occurred a
Change in Control, Securities shall be purchased by the Company, at the option
of the Holder thereof, in whole or in part in integral multiples of aggregate
principal amount of $1,000, on a date that is not earlier than 45 days nor later
than 60 days from the date the Change in Control Notice referred to below is
given to Holders or such later date identified by the Company as may be
necessary for the Company to comply with requirements under the Exchange Act
(such date or such later date, being the "CHANGE IN CONTROL PURCHASE DATE"), at
a purchase price in cash (the "CHANGE IN CONTROL PURCHASE PRICE") equal to 101%
of the principal amount thereof plus accrued and unpaid interest, if any, to any
Change in Control Purchase Date; provided that any semi-annual payment of
interest becoming due on the Change in Control Purchase Date shall be payable to
the holders of such Securities registered as such on the relevant Interest
Record Date subject to the terms and provisions of Section 2.04 hereof.
(b) Within 15 days following any Change in Control, the Issuer shall
send, by first-class mail, postage prepaid, a Change in Control Notice to each
Holder with a copy to the Trustee stating:
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(i) that a Change in Control has occurred and that such Holder
has the right to require the Company to repurchase such Holder's
Securities at the Change in Control Purchase Price;
(ii) the circumstance and relevant facts regarding such Change
in Control (including information with respect to pro forma historical
income, cash flow and capitalization after giving effect to such Change
in Control);
(iii) the Change in Control Purchase Date;
(iv) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any portion
of a Security tendered must be tendered in an integral multiple of
$1,000 principal amount;
(v) the place or places where Securities are to be surrendered
for tender;
(vi) that interest on any Security not tendered will continue
to accrue;
(vii) that on the Change in Control Purchase Date the Change
in Control Purchase Price will become due and payable upon each
Security accepted for payment and that interest thereon shall cease to
accrue on and after the Purchase Date;
(viii) that each Holder electing to tender a Security will be
required to surrender such Security at the place or places specified in
the Change in Control Notice prior to the close of business on the
Change in Control Purchase Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing);
(ix) that Holders will be entitled to withdraw all or any
portion of Securities tendered if the Company (or its paying agent)
receives, not later than the close of business on the Change in Control
Purchase Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Security the Holder tendered, the certificate number of the Security
the Holder tendered and a statement that such Holder is withdrawing all
or a portion of his tender; and
(x) that Holders which elect to have their Securities
purchased only in part will be issued new Securities in a principal
amount equal to the unpurchased portion of the Securities surrendered.
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(c) On the Change in Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change in Control Notice, (ii) deposit with the Trustee money sufficient to pay
the purchase price of all Securities or portions thereof so tendered and (iii)
deliver or cause to be delivered to the Trustee Securities so accepted together
with an Officers' Certificate stating the Securities or portions thereof
tendered to the Company. The Trustee shall promptly mail to the holders of
Securities so accepted payment in an amount equal to the Change in Control
Purchase Price, and promptly authenticate and mail to such Holders a new
Security in a principal amount equal to any unpurchased portion of the Security
surrendered. The Company will publicly announce the results of the Change in
Control offer on or as soon as practicable after the Change in Control Purchase
Date.
(d) The Company shall comply with any applicable tender offer rules
then in effect, including Section 14(e) of the Exchange Act and Rule 14e-1
promulgated thereunder (or any successor provisions), in connection with a
Change in Control offer. In the event of any conflict between such tender offer
rules and the provisions set forth in this Indenture, such tender offer rules
shall control.
SECTION 3.18. Provision of Financial Information. To the extent
permitted under the Exchange Act, whether or not the Company is required to
comply with Section 13(a) or 15(d) (or any successor provision) of the Exchange
Act, the Company shall file with the Commission the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to such Section 13(a) or 15(d) (or any successor
provision) if the Company were so required, such documents to be filed with the
Commission on or prior to the respective dates (the "REQUIRED FILING DATES") by
which the Company would have been required to file such documents if the Company
were so required. The Company shall also in any event (a) within 15 days of each
Required Filing Date (i) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, and
(ii) file with the Trustee copies of the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) (or any successor provision) of
the Exchange Act if the Company were required to be subject to such Sections and
(b) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request supply copies of such
documents to any Holder.
SECTION 3.19. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not (a) at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive the Company from paying all or any portion of the
principal of
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or interest on the Securities as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company will expressly waive all benefit
or advantage of any such law and (b) hinder, delay or impede the execution of
any power granted to the Trustee under this Indenture and will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default. In case one or more of the following Events of Default
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body) shall have occurred and be continuing, that
is to say:
(a) default in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities, the amount payable upon the redemption of any Securities, the
Change in Control Purchase Price or the Asset Sale Offer Price as and when the
same shall become due and payable under this Indenture whether at Stated
Maturity, upon any redemption, by declaration of acceleration, when due for
purchase by the Company, or otherwise; or
(c) default in the performance or breach of any covenant or agreement
of the Company under this Indenture (other than a default in the performance or
breach of a covenant or agreement that is specifically dealt with elsewhere
herein) and continuance of such default or breach for a period of 30 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the holders of at least 25% in
principal amount of the outstanding Securities a written notice specifying such
default or breach and stating that such notice is a "NOTICE OF DEFAULT" under
this Indenture; or
(d) default in the payment of any principal, premium, if any, or
interest when due or after the expiration of any applicable grace period in
respect of any Indebtedness of the Company or any Restricted Subsidiary
(including, without limitation, reimbursement obligations with respect to
Performance Letters of Credit) having an outstanding principal amount (or with
an outstanding
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reimbursement obligation) of $2.5 million or more individually or in the
aggregate or the acceleration of the maturity of any such Indebtedness; or
(e) one or more final judgments or orders rendered against the Company
or any Restricted Subsidiary which require the payment in money, either
individually or in an aggregate amount, of more than $500,000 shall remain
unsatisfied or unstayed for 30 consecutive days after any such judgment or order
becomes final and nonappealable; or
(f) the entry of a decree or order by a court having jurisdiction in
the premises (i) for relief in respect of the Company or any Material Subsidiary
in an involuntary case or proceeding under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or (ii) adjudging the Company
or any such Material Subsidiary as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company or any such Material Subsidiary under any such law, or (iii) appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any Material Subsidiary or of any
substantial part of any of their properties, or ordering the winding up or
liquidation of any of their affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(g) the institution by the Company or any Material Subsidiary of a
voluntary case or proceeding under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or the consent by the Company or
any Material Subsidiary to the entry of a decree or order for relief in respect
of the Company or any Material Subsidiary in any involuntary case or proceeding
under any such law or to the institution of bankruptcy or insolvency proceedings
against the Company or such Material Subsidiary, or the filing by the Company or
any Material Subsidiary of a petition or answer or consent seeking
reorganization or relief under any such law, or the consent by the Company or
any Material Subsidiary to the filing of any such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or such Material
Subsidiary or any substantial part of any of their properties, or the making by
the Company or any Material Subsidiary of an assignment for the benefit of
creditors, or the admission by the Company or any Material Subsidiary in writing
of an inability to pay any of their debts generally as they become due or the
taking of corporate action by the Company or any Material Subsidiary in
furtherance of any such action;
then, and in each and every such case, unless the principal of all of the
Securities shall have already become due and payable (and other than as
specified in clauses (f) and (g) above), either the Trustee or the holders of at
least 25% in aggregate principal amount of the Securities then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Securityholders), may, and the
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Trustee at the request of such holders shall, declare the entire principal of
all the Securities and the interest accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable immediately after receipt by the Company of such written notice. If
an Event of Default specified in clause (f) or (g) above occurs and is
continuing, then the Securities and the accrued interest thereon shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. This provision, however, is subject to the
condition that if, at any time after the principal of the Securities shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, (A) the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (1) all matured installments of interest upon all the
Securities and the principal of any and all Securities which shall have become
due otherwise than by acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest
specified in the Securities, to the date of such payment or deposit) and (2)
such amount as shall be sufficient to cover reasonable compensation to the
Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith, (B) the rescission would not conflict with any judgment or decree and
(C) any and all Events of Default under this Indenture, other than the
non-payment of the principal of Securities which shall have become due by
acceleration, shall have been cured, waived or otherwise remedied as provided
herein--then and in every such case the holders of a majority in aggregate
principal amount of the Securities then outstanding, by written notice to the
Company and to the Trustee, may waive all defaults and rescind and annul such
declaration and its consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent Default or shall impair any right
consequent thereon.
SECTION 4.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any instalment of interest on any of the Securities when such
interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case default shall be made in the
payment of all or any part of the principal of any of the Securities, the amount
payable upon the redemption of any securities, the Change in Control Purchase
Price or the Asset Sale Offer Price when the same shall have become due and
payable, whether upon maturity, upon any redemption, by declaration, when due
for purchase or otherwise--then upon demand of the Trustee, the Company will pay
to the Trustee for the benefit of the holders of the Securities the whole amount
that then shall have become due and payable on all such Securities for principal
or interest, as the case may be (with interest to the date of such payment upon
the overdue principal and, to the extent that payment of such interest is
enforceable under
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applicable law, on overdue installments of interest at the same rate as the rate
of interest specified in the Securities); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and any expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities to the Holders, whether or not the
Securities be overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company or other obligor upon the
Securities and collect in the manner provided by law out of the property of the
Company or other obligor upon the Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor upon the Securities, or to the creditors or property of the
Company or such other obligor, the Trustee, irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the
Securities, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and
each predecessor Trustee, and their respective agents, attorneys and
counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor
Trustee, except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to the
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Company or other obligor upon the Securities, or to the creditors or
property of the Company or such other obligor,
(ii) if permitted by applicable law and regulations and
evidenced by an opinion of counsel, to vote on behalf of the holders of
the Securities in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and
of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized by
each of the Securityholders to make payments to the Trustee, and, in
the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities or the production thereof on any trial or
other proceedings relative thereto, and any such action or proceedings
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Trustee, each predecessor
Trustee and their respective agents and attorneys, shall be for the ratable
benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities, and it shall not be necessary to make any holders of the
Securities parties to any such proceedings.
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SECTION 4.03. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article shall be applied in the following order at the
date or dates fixed by the Trustee and, in case of the distribution of such
moneys on account of principal or interest, upon presentation of the several
Securities and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented Securities
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Trustee and each predecessor Trustee and
their respective agents and attorneys and of all expenses and
liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence or bad faith;
SECOND: In case the principal of the Securities shall not have
become and be then due and payable, to the payment of interest in
default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest specified in the Securities, such
payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
THIRD: In case the principal of the Securities shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities for principal and
interest, with interest upon the overdue principal, and (to the extent
that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest
specified in the Securities; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities, then to the payment of such principal and interest, without
preference or priority of principal over interest, or of interest over
principal, or of any instalment of interest over any other instalment
of interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or any other person lawfully entitled thereto.
SECTION 4.04. Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement
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contained in this Indenture or in aid of the exercise of any power granted in
this Indenture or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
SECTION 4.05. Restoration of Rights on Abandonment of Proceedings. In
case the Trustee shall have proceeded to enforce any right under this Indenture
and such proceedings shall have been discontinued or abandoned for any reason,
or shall have been determined adversely to the Trustee, then and in every such
case the Company and the Trustee shall be restored respectively to their former
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Trustee and the Securityholders shall continue as though no such
proceedings had been taken.
SECTION 4.06. Limitations on Suits by Securityholders. No holder of any
Security shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the holders of not less than
25% in aggregate principal amount of the Securities then outstanding shall have
made written request upon the Trustee to institute such action or proceedings in
its own name as trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days after
its receipt of such notice, request and offer of indemnity shall have failed to
institute any such action or proceedings and no direction inconsistent with such
written request shall have been given to the Trustee pursuant to Section 4.08;
it being understood and intended, and being expressly covenanted by the taker
and holder of every Security with every other taker and Holder and the Trustee,
that no one or more holders of Securities shall have any right in any manner
whatever by virtue or by availing of any provision of this Indenture to affect,
disturb or prejudice the rights of any other holder of Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
SECTION 4.07. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.09, no right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and
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remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
No delay or omission of the Trustee or of any holder of any of the
Securities to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.06, every power and remedy given
by this Indenture or by law to the Trustee or to the Securityholders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Securityholders.
SECTION 4.08. Control by Securityholders. The holders of a majority in
aggregate principal amount of the Securities at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee by this Indenture; provided that such direction shall not be
otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 5.01) 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 or proceeding so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors, the executive committee, or a trust committee of directors or
Responsible Officers of the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction shall be unduly prejudicial to the
interests of holders of the Securities not joining in the giving of said
direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Securityholders.
SECTION 4.09. Waiver of Past Defaults. Prior to the declaration of the
maturity of the Securities as provided in Section 4.01, the holders of a
majority in aggregate principal amount of the Securities at the time outstanding
may by notice to the Trustee (and without notice to any other Holder) on behalf
of the holders of all the Securities waive any past default or Event of Default
hereunder and its consequences, except (i) an Event of Default described in
Section 4.01(b) or (ii) a default in the payment of interest on any Securities
or in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of the
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holder of each outstanding Security affected. In the case of any such waiver,
the Company, the Trustee and the holders of the Securities shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or impair any right consequent
thereon.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereto.
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default has
occurred (which has not been cured or waived) the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default of which the Trustee
has actual notice and after the curing or waiving of all such Events of Default
which may have occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the
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requirements of this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Securities at the
time outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
This Section 5.01 is in furtherance of and subject to Sections 315 and
316 of the Trust Indenture Act of 1939.
SECTION 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the Company;
(c) the Trustee may consult with counsel and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
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(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder, of which
the Trustee has actual notice, and after the curing or waiving of all Events of
Default, the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the holders of not less than a majority in aggregate
principal amount of the Securities then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a condition to
proceeding; the reasonable expenses of every such examination shall be paid by
the Company or, if paid by the Trustee or any predecessor trustee, shall be
repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
SECTION 5.04. Trustee and Agents May Hold Securities; Collections, Etc.
The Trustee or any agent of the Company or the Trustee, in its individual or any
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other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and may otherwise
deal with the Company and receive, collect, hold and retain collections from the
Company with the same rights it would have if it were not the Trustee or such
agent.
SECTION 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 9.04 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Company or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.06. Notice of Default. If any Default or any Event of Default
occurs and is continuing and if such Default or Event of Default is actually
known to the Trustee, the Trustee shall mail to each Holder in the manner and to
the extent provided in Trust Indenture Act Section 313(c) notice of the Default
or Event of Default within 45 days after it occurs, unless such Default or Event
of Default has been cured; provided, however, that, except in the case of a
default in the payment of the principal of, premium, if any, or interest on any
Security, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interest of the Holders.
SECTION 5.07. Compensation and Indemnification of Trustee and Its Prior
Claim. The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Company covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Company also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises. The obligations
of the Company under this Section to compensate and indemnify the Trustee and
each predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses,
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disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. Such
additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the holders of particular Securities, and the
Securities are hereby subordinated to such senior claim.
SECTION 5.08. Right of Trustee to Rely on Officers' Certificate, Etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 5.09. Persons Eligible for Appointment as Trustee. The Trustee
hereunder shall at all times be a corporation having a combined capital and
surplus of at least $100,000,000, and which is eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
SECTION 5.10. Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee may at any time resign by giving written notice of
resignation to the Company and by mailing notice thereof by first-class mail to
holders of Securities at their last addresses as they shall appear on the
Security register. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor trustee by written instrument in duplicate,
executed by authority of the Board of Directors, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been so appointed and have accepted
appointment within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Securityholder who has been a bona
fide holder of a Security or Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939, after written
request therefor by the Company or by any Securityholder who has been a
bona fide holder of a Security or Securities for at least six months;
or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 5.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall
be adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint
a successor trustee by written instrument, in duplicate, executed by order of
the Board of Directors of the Company, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder
who has been a bona fide holder of a Security or Securities for at least six
months may on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The holders of a majority in aggregate principal amount of the
Securities at the time outstanding may at any time remove the Trustee and
appoint a successor trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section 5.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 5.11.
SECTION 5.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties
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and obligations of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 9.04, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 5.07.
Upon acceptance of appointment by a successor trustee as provided in
this Section 5.11, the Company shall mail notice thereof by first-class mail to
the holders of Securities at their last addresses as they shall appear in the
Security register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 5.10.
If the Company fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
SECTION 5.12. Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or to which the Trustee's assets
may be sold, or any corporation resulting from any merger, conversion,
consolidation or sale to which the Trustee shall be a party or by which the
Trustee's property may be bound, or any corporation succeeding to the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such corporation shall be eligible under the provisions of Section
5.09, without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such
Securities so authenticated; and, in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Trustee or to
authenticate Securities in the name of any predecessor
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Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 5.13. Preferential Collection of Claims. Reference is made to
Section 311 of the Trust Indenture Act. For purposes of Section 311(b) (4) and
(6) of such Act, the following terms shall mean:
(a) "CASH TRANSACTION" means any transaction in which full payment for
goods or securities sold is made within seven days after delivery of the goods
or securities in currency or in checks or other orders drawn upon banks or
bankers and payable upon demand; and
(b) "SELF-LIQUIDATING PAPER" means any draft, bill of exchange,
acceptance or obligation which is made, drawn, negotiated or incurred by the
Company for the purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and which is secured by
documents evidencing title to, possession of, or a lien upon, the goods, wares
or merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making, drawing,
negotiating or incurring of the draft, bill of exchange, acceptance or
obligation.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Securityholders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof of execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Article.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, the execution of any
instrument by a Securityholder or his agent or proxy may be proved in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of
Securities shall be proved by the Security register or by a certificate of the
Registrar thereof.
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The Company may set a record date for purposes of determining the identity of
holders of Securities entitled to vote or consent to any action referred to in
Section 6.01, which record date may be set at any time or from time to time by
notice to the Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only holders of Securities of record on such record date
shall be entitled to so vote or give such consent or to withdraw such vote or
consent.
SECTION 6.03. Securities Owned by Company Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Securities have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Company or any other obligor on the
Securities or by any person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company or any other obligor
on the Securities shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, consent
or waiver only Securities which the Trustee actually knows are so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
In case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice. Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of any of the above-described persons; and, subject to Sections 5.01 and
5.02, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are outstanding for the purpose of any such
determination.
SECTION 6.04. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, of
the taking of any action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such
action, any holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders
of which have consented to such action may, by filing written notice at the
Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid any
such action taken by the holder of any Security shall be conclusive and binding
upon such holder and upon
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all future holders and owners of such Security and of any Securities issued in
exchange or substitution therefor, irrespective of whether or not any notation
in regard thereto is made upon any such Security. Any action taken by the
holders of the percentage in aggregate principal amount of the Securities
specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the holders of all the Securities.
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Eight;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the holders of Securities, and to
make the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such
additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the holders of a majority in aggregate principal amount of
the Securities to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture; or to make such other provisions in regard to matters or questions
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arising under this Indenture or under any supplemental indenture as the Board of
Directors may deem (i) necessary or desirable and (ii) not to adversely affect
the interests of the holders of the Securities; and
(e) to provide for the issuance under this Indenture of Securities in
coupon form (including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with Securities issued hereunder
in fully registered form, and to make all appropriate changes for such purpose.
The Trustee is hereby authorized to join in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the holders of any of the Securities at
the time outstanding, notwithstanding any of the provisions of Section 7.02.
SECTION 7.02. Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article 6) of the holders of not less
than a majority in aggregate principal amount of the Securities at the time
outstanding, the Company, when authorized by a resolution of its Board of
Directors, and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Securities; provided, that no such supplemental
indenture shall (a) extend the Stated Maturity of any Security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any amount payable on redemption thereof or upon the
occurrence of an Event of Default, or reduce the Change in Control Purchase
Price or the Asset Sale Offer Price, or impair or affect the right of any
Securityholder to institute suit for the payment thereof without the consent of
the holder of each Security so affected, or (b) reduce the aforesaid percentage
of Securities, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the holders of all Securities
then outstanding.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the Secretary or an Assistant Secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Securityholders
and other documents, if any, required by Section 6.01 the Trustee shall join
with the
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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.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice thereof by first-class mail, postage prepaid, to the holders
of Securities at their addresses as they shall appear on the registry books of
the Company, setting forth in general terms the substance of such supplemental
indenture. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 7.03. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Securities
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
SECTION 7.04. Documents to Be Given to Trustee; Compliance With TIA.
The Trustee, subject to the provisions of Sections 5.01 and 5.02, may receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
such supplemental indenture complies with the applicable provisions of this
Indenture. Every such supplemental indenture shall comply with the TIA.
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation approved by the Trustee as to form (but not as to substance) as to any
matter provided for by such supplemental indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities then outstanding.
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ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. When Issuer May Merge, Etc. The Company may not, without
the consent of the holders of all Securities then outstanding, consolidate with,
merge into or convey, sell, transfer, lease, exchange or otherwise dispose of
all of its assets and properties (as an entirety or substantially as an entirety
in one transaction or a series of related transactions), to any other person
unless (a) the successor is a corporation or partnership organized under the
laws of the United States or any political subdivision thereof or therein, (b)
the successor assumes all obligations of the Company under this Indenture and
the Securities, (c) after giving effect to such consolidation, merger,
conveyance, sale, transfer, lease, exchange or other disposition, no Default or
Event of Default, shall have occurred and be continuing, (d) the successor would
have a pro forma Consolidated Net Worth after giving effect to such
consolidation, merger, conveyance, sale, transfer, lease, exchange or other
disposition and prior to any purchase accounting adjustments at least equal to
the Consolidated Net Worth of the Company prior to such consolidation, merger,
conveyance, sale, transfer, lease, exchange or other disposition and (e) the
Company could Incur, immediately prior to such consolidation, merger,
conveyance, sale, transfer, lease, exchange or other disposition, and the
successor would be able to Incur, after giving effect to such consolidation,
merger, conveyance, sale, transfer, lease, exchange or other disposition, an
additional $1.00 of Indebtedness (excluding Permitted Indebtedness) pursuant to
the provisions of Section 3.08 of this Indenture.
SECTION 8.02. Successor Corporation Substituted. Upon any consolidation
or merger or any conveyance, sale, transfer, lease, exchange or other
disposition of the properties and assets of the Company substantially as an
entirety to any person in accordance with the provisions described above, the
successor formed by such consolidation or into which the Company is merged or to
which such conveyance, sale, transfer, lease, exchange or other disposition is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company in this Indenture; and thereafter,
except in the case of a conveyance, sale, transfer, lease, exchange or other
disposition of properties to another person, the predecessor person shall be
released from all obligations and covenants under this Indenture and the
Securities.
SECTION 8.03. Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, sale,
transfer, lease, exchange or other disposition complies with the applicable
provisions of this Indenture.
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ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.01. Satisfaction and Discharge of Indenture. If at any time
(a) the Company shall have paid or caused to be paid the principal of and
interest on all the Securities outstanding hereunder, as and when the same shall
have become due and payable, or (b) the Company shall have delivered to the
Trustee for cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.09) or (c) (i) all such
Securities not theretofore delivered to the Trustee for cancellation (x) shall
have become due and payable, (y) are by their terms to become due and payable
within one year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption,
(ii) the Company shall have irrevocably deposited or caused to be deposited with
the Trustee as trust funds the entire amount in cash (other than moneys repaid
by the Trustee or any paying agent to the Company in accordance with Section
9.04) sufficient to pay at maturity or upon redemption all such Securities not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, (iii)
no Default or Event of Default shall have occurred or be continuing on the date
of such deposit and (iv) such deposit shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound, and if, in
any such case, the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (A) rights of registration of transfer and
exchange, (B) substitution of apparently mutilated, defaced, destroyed, lost or
stolen Securities, (C) rights of Holders to receive payments of principal
thereof and interest thereon, (D) the rights, obligations and immunities of the
Trustee hereunder, and (E) the rights of the Securityholders as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Company, shall execute proper instruments acknowledging such satisfaction of
and discharging this Indenture. The Company agrees to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities.
SECTION 9.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.04, all moneys deposited with the Trustee
pursuant to Section 9.01 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 Securities for
the payment or
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redemption of which such moneys have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such money
need not be segregated from other funds except to the extent required by law.
SECTION 9.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture all moneys then held by
any paying agent under the provisions of this Indenture shall, upon demand of
the Company, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 9.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Three Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any Security
and not applied but remaining unclaimed for three years after the date upon
which such principal or interest shall have become due and payable, shall, upon
the written request of the Company and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Company by the Trustee or such paying agent, and the holder of
such Security shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look only
to the Company for any payment which such Holder may be entitled to collect, and
all liability of the Trustee or any paying agent with respect to such moneys
shall thereupon cease.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 10.02. Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the holders
of the Securities, any
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legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
holders of the Securities.
SECTION 10.03. Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 10.04. Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to Benton Oil and Gas Company, 1145 Eugenia Place, Suite 200,
Carpinteria, CA 93013. Any notice, direction, request or demand by the Company
or any Securityholder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or made at the Corporate
Trust Office.
Where this Indenture provides for notice to Holders, such notice shall
be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder entitled thereto, at his
last address as it appears in the Security register. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. The Trustee may waive notice
to it of any provision herein, and such waiver shall be deemed to be for its
convenience and discretion. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
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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.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information which is in the possession of the Company,
upon the certificate, statement or opinion of or representations by an officer
or officers of the Company, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which
his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.06. Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities or the date fixed
for redemption of any Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 10.07. Conflict of Any Provision of Indenture With Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 (an "INCORPORATED PROVISION"), such incorporated provision shall control.
SECTION 10.08. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and
for all purposes shall be construed in accordance with the laws of said State,
except as may otherwise be required by mandatory provisions of law.
SECTION 10.09. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10. Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Right of Optional Redemption; Prices. On or after
November 1, 2002, the Company at its option may, at any time, redeem all, or
from time to time any part of, the Securities upon payment of the optional
redemption prices set forth in the form of Security hereinabove recited,
together with accrued and unpaid interest to the date fixed for redemption.
In addition, at any time prior to November 1, 2000, the Company may
redeem up to 33% of the aggregate principal amount of the Securities then
outstanding with the proceeds of a Public Equity Offering within 90 days of such
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offering at a redemption price equal to 109.375% of the principal amount of such
Securities plus accrued and unpaid interest to the redemption date; provided
that at least $77 million in aggregate principal amount of Securities remain
outstanding immediately after giving effect to such redemption.
SECTION 11.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the holders of Securities to be redeemed as a whole or in part
shall be given by mailing notice of such redemption by first class mail, postage
prepaid, at least 30 days and not more than 60 days prior to the date fixed for
redemption to such holders of Securities at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given, whether or not
the Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
The notice of redemption to each such Holder shall specify the
principal amount of each Security held by such Holder to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities, that
interest accrued to the date fixed for redemption will be paid as specified in
said notice and that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any Security is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities to be redeemed at the option of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
At least one business day prior to the redemption date specified in the
notice of redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.04) an amount of money sufficient to redeem on the redemption date all
the Securities so called for redemption at the appropriate redemption price,
together with accrued interest to the date fixed for redemption. If less than
all the outstanding Securities are to be redeemed the Company will deliver to
the Trustee at least 70 days prior to the date fixed for redemption an Officers'
Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities are to be redeemed, the Trustee shall
select, either pro rata, by lot or by any other method it shall deem fair and
reasonable,
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Securities to be redeemed in whole or in part. Securities may be redeemed in
part in multiples of $1,000 only. The Trustee shall promptly notify the Company
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semi-annual payment
of interest becoming due on the date fixed for redemption shall be payable to
the holders of such Securities registered as such on the relevant Interest
Record Date subject to the terms and provisions of Section 2.04 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate borne
by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Company, a new Security or
Securities, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 40 days prior to the last date on which notice
of
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redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
ARTICLE 12
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.01. Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may at its option by resolution of the Board of
Directors, at any time, elect to have either Section 12.02 or Section 12.03
applied to the outstanding Securities upon compliance with the conditions set
forth below in this Article 12.
SECTION 12.02. Defeasance and Discharge. Upon the Company's exercise of
the option provided in Section 12.01 in respect of this Section, the Company
shall be deemed to have been discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth in Section 12.04 are
satisfied (hereinafter, "DEFEASANCE"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities and to have satisfied all
its other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (i) the
rights of holders of such Securities to receive, solely from the trust fund
described in Section 12.04 and as more fully set forth in such Section, payments
in respect of the principal of and interest on such Securities when such
payments are due, (ii) the Company's obligations with respect to such Securities
under Sections 2.01, 2.02, 2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 3.01, 3.02, 3.04
and 12.05 and with respect to the Trustee under Sections 5.07 and 5.11, (iii)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this Article 12. Subject to compliance with this Article 12, the Company
may exercise its option under this Section 12.02 notwithstanding the prior
exercise of its option under Section 12.03.
SECTION 12.03. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 12.01 in respect of this Section, (a) the Company
shall be released from its obligations under Sections 3.08 through 3.17,
inclusive, and clauses (iv) and (v) of Section 8.01, and (b) the occurrence of
any event specified in Section 4.01(c) (with respect to Clauses (iv) or (v) of
Section 8.01 or with respect to any of Sections 3.08 through 3.17), in Section
4.01(d) and in
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Section 4.01(e) shall neither be deemed to be a default nor susceptible of
becoming an Event of Default on and after the date the conditions set forth in
Section 12.04 are satisfied (hereinafter, "COVENANT DEFEASANCE"). For this
purpose, such covenant defeasance means that the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section or clause, whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or clause or by reason of any
reference in any such Section or clause to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 12.04. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to defeasance pursuant to Section 12.02, or
covenant defeasance pursuant to Section 12.03, of the then outstanding
Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the holders of such Securities, (i) money in an amount, or
(ii) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (iii) a combination thereof, sufficient, in the written opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge
(without consideration of the reinvestment of such interest and after payment of
all federal, state and local taxes or other charges and assessments in respect
thereof) and which shall be applied by the Trustee to pay and discharge, the
principal of and each instalment of interest on the Securities on the maturity
date of such principal or instalment of interest or on such redemption date as
shall have been irrevocably designated to the Trustee under arrangements
satisfactory to the Trustee all in accordance with the terms of this Indenture
and of such Securities. For this purpose, "U.S. GOVERNMENT OBLIGATIONS" means
securities that are (x) direct obligations of the United States of America for
the payment of which its full faith and credit is pledged or (y) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is uncondi tionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation held
by such custodian for the account of the holder of such depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government
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Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) As a condition to defeasance under Section 12.02, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the holders of the outstanding
Securities will not recognize gain or loss for Federal income tax purposes as a
result of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred.
(c) As a condition to covenant defeasance under Section 12.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of the outstanding Securities will not recognize gain or loss
for Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit
and covenant defeasance had not occurred.
(d) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any securities
exchange, will not be delisted as a result of such deposit and defeasance or
covenant defeasance, as applicable.
(e) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest for purposes of the Trust Indenture Act with
respect to any securities of the Company.
(f) No Event of Default described in Section 4.01(f) or 4.01(g) shall
have occurred at any time during the period ending on the 123rd day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(g) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(h) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to defeasance or covenant defeasance as applicable, have been complied
with.
90
<PAGE> 98
(i) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) such defeasance or covenant defeasance will not
cause the Trustee or the trust arising from such deposit to be subject to the
Investment Company Act of 1940, as amended and (ii) the holders of the
Securities will have a valid perfected first-priority security interest in the
trust funds.
SECTION 12.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 9.04, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 12.04 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any paying agent (including the Company acting as its own
paying agent) as the Trustee may determine, to the holders of such Securities,
of all sums due and to become due thereon in respect of principal and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.04 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the holders of the outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the written
request of the Company any money or U.S. Government Obligations held by it as
provided in Section 12.04 which, in the written opinion of a nationally
recognized firm of independent public accountants to the Trustee, are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent defeasance or covenant defeasance.
SECTION 12.06. Reinstatement. If the Trustee or the paying agent is
unable to apply any money in accordance with Section 12.05 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or paying agent is permitted to apply all such money in accordance with
Section 12.05; provided that if the Company makes any payment of principal of or
interest on any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the holders of such Securities to
receive such payment from the money held by the Trustee or the paying agent.
91
<PAGE> 99
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of November 3, 1997.
BENTON OIL AND GAS COMPANY,
as Issuer
By
-----------------------------
Name: James M. Whipkey
Title: Senior Vice President
[CORPORATE SEAL]
Attest:
By
--------------------------
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION,
as Trustee
By
-----------------------------
Name:
Title:
[CORPORATE SEAL]
Attest:
By
--------------------------
<PAGE> 100
STATE OF CALIFORNIA )
ss.:
COUNTY OF __________)
On the 3rd day of November, 1997, before me personally came James M.
Whipkey, to me known, who, being by me duly sworn, did depose and say that he is
a Senior Vice President of Benton Oil and Gas Company, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
--------------------------
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On the 3rd day of November, 1997, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he or she is ________________of First Trust of New York, National
Association, one of the corporations described in and which executed the
foregoing instrument; that he or she knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
or she signed his or her name thereto by like authority.
--------------------------
<PAGE> 101
EXHIBIT A
---------
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
------------------------
------, ----
First Trust of New York, National Association
100 Wall Street, Suite 1600
New York, NY 10005
Attention: Corporate Trust Department
Re: Benton Oil and Gas Company (the "COMPANY")
9 3/8% Senior Notes due 2007 (the "SECURITIES")
-----------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$________ aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the Securities Act of
1933, as amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933. You and the
Company are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceedings or official inquiry with respect to the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
A-1
<PAGE> 102
Very truly yours,
[Name of Transferor]
By:
---------------------
Authorized Signature
A-2
<PAGE> 1
23
EXHIBIT 11.1
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
-------------------------------------------
(amounts in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30
-------------------------------
1997 1996
------- --------
<S> <C> <C>
PRIMARY EARNINGS PER SHARE
- --------------------------
Net income attributable to common stock $ 2,869 $ 8,813
======== ========
Weighted average number of common shares outstanding 29,094 27,559
======== ========
Primary earnings per share $ 0.10 $ 0.32
======== ========
ADDITIONAL PRIMARY COMPUTATION
- ------------------------------
Net income attributable to common stock $ 2,869 $ 8,813
======== ========
Shares:
Weighted average number of common shares outstanding 29,094 27,559
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 1,552 2,765
-------- --------
Primary weighted average number of common shares outstanding as adjusted 30,646 30,324
======== ========
Primary earnings per share $ 0.09 $ 0.29
======== ========
ASSUMING FULL DILUTION
- ----------------------
Net income attributable to common stock $ 2,869 $ 8,813
======== ========
Shares:
Weighted average number of common shares outstanding 29,094 27,559
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 2,007 2,877
-------- --------
Weighted average number of common shares outstanding as adjusted 31,101 30,436
======== ========
Earnings per common share assuming full dilution $ 0.09 $ 0.29
======== ========
ADDITIONAL FULLY DILUTED COMPUTATION
- ------------------------------------
Additional adjustment to net income as adjusted per fully diluted computation
above:
Net income attributable to common stock $ 2,869 $ 8,813
Add after tax interest expense attributable to convertible notes 0 0
Add after tax interest expense attributable to convertible debentures 0 (25)
-------- --------
Net income as adjusted $ 2,869 $ 8,788
======== ========
Additional adjustment to weighted average number of shares outstanding:
Weighted average number of common shares outstanding 29,094 27,559
Add shares assuming conversion of convertible debentures 0 34
Add shares assuming conversion of convertible notes 0 -
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 2,007 2,877
-------- --------
Weighted average number of common shares outstanding as adjusted 31,101 30,470
======== ========
Earnings per common share assuming full dilution $ 0.09 $ 0.29
======== ========
</TABLE>
<PAGE> 1
24
EXHIBIT 11.2
BENTON OIL AND GAS COMPANY AND SUBSIDIARIES
COMPUTATION OF EARNINGS PER COMMON SHARE
-------------------------------------------
(amounts in thousands, except per share data)
<TABLE>
<CAPTION>
NINE MONTHS ENDED SEPTEMBER 30,
1997 1996
---- ----
<S> <C> <C>
PRIMARY EARNINGS PER SHARE
- --------------------------
Net income attributable to common stock $ 15,985 $ 18,938
======== ========
Weighted average number of common shares outstanding 29,025 26,741
======== ========
Primary earnings per share $ 0.55 $ 0.71
======== ========
ADDITIONAL PRIMARY COMPUTATION
- ------------------------------
Net income attributable to common stock $ 15,985 $ 18,938
======== ========
Shares:
Weighted average number of common shares outstanding 29,025 26,741
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 1,752 2,385
-------- --------
Primary weighted average number of common shares outstanding as adjusted 30,777 29,126
======== ========
Primary earnings per share $ 0.52 $ 0.65
======== ========
ASSUMING FULL DILUTION
Net income attributable to common stock $ 15,985 $ 18,938
======== ========
Shares:
Weighted average number of common shares outstanding 29,025 26,741
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 2,071 3,172
-------- --------
Weighted average number of common shares outstanding as adjusted 31,096 29,913
======== ========
Earnings per common share assuming full dilution $ 0.51 $ 0.63
======== ========
ADDITIONAL FULLY DILUTED COMPUTATION
- -------------------------------------
Additional adjustment to net income as adjusted per fully diluted computation
above:
Net income attributable to common stock $ 15,985 $ 18,938
Add after tax interest expense attributable to convertible notes 0 (71)
Add after tax interest expense attributable to convertible debentures 0 104
-------- --------
Net income as adjusted $ 15,985 $ 18,971
======== ========
Additional adjustment to weighted average number of shares outstanding:
Weighted average number of common shares outstanding 29,025 26,741
Add shares assuming conversion of convertible debentures 0 266
Add shares assuming conversion of convertible notes 0 27
Add shares assuming exercise of options reduced by the number of shares which
could have been purchased with the proceeds from exercise of such options 2,071 3,172
-------- --------
Weighted average number of common shares outstanding as adjusted 31,096 30,206
======== ========
Earnings per common share assuming full dilution $ 0.51 $ 0.63
======== ========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-Q
FOR THE PERIOD ENDED SEPTEMBER 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> SEP-30-1997
<EXCHANGE-RATE> 1
<CASH> 32,955
<SECURITIES> 51,159
<RECEIVABLES> 52,406
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 142,875
<PP&E> 344,064
<DEPRECIATION> 85,487
<TOTAL-ASSETS> 478,096
<CURRENT-LIABILITIES> 64,891
<BONDS> 176,489
0
0
<COMMON> 292
<OTHER-SE> 193,203
<TOTAL-LIABILITY-AND-EQUITY> 478,096
<SALES> 121,869
<TOTAL-REVENUES> 132,464
<CGS> 62,540
<TOTAL-COSTS> 62,540
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 16,726
<INCOME-PRETAX> 36,477
<INCOME-TAX> 14,908
<INCOME-CONTINUING> 15,985
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 15,985
<EPS-PRIMARY> 0.52
<EPS-DILUTED> 0.51
</TABLE>
