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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 10, 1997
SNYDER OIL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 1-10509 75-2306158
(State or other jurisdiction (Commission File Number) (IRS Employer
of incorporation) Identification No.)
777 Main Street, Suite 2500, Fort Worth, Texas 76102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 817/654-3166
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Item 5. Other Events.
On June 10, 1997, Snyder Oil Corporation (the "Company") is issuing and
selling $175,000,000 aggregate principal amount of its 8 3/4% Senior
Subordinated Notes due 2007 (the "Offering"). In connection with the Offering,
the Company entered into an Underwriting Agreement, an Indenture, a First
Supplemental Indenture and a Second Supplemental Indenture, copies of which are
filed as Exhibits hereto.
Item 7. Financial Statements and Exhibits.
(c) Exhibits.
The following exhibits are filed as part of this Current Report on Form
8-K:
Exhibit Number and Description
1.1 Underwriting Agreement dated June 5, 1997 by and among the
Company, the Subsidiary Guarantors (as therein defined), NationsBanc Capital
Markets, Inc., Chase Securities Inc., Smith Barney Inc. and Petrie Parkman &
Co., Inc.
4.1 Indenture dated as of June 10, 1997 by and between the Company
and Texas Commerce Bank National Association, Trustee.
4.2 First Supplemental Indenture dated as of June 10, 1997 by and
between the Company and Texas Commerce Bank National Association, Trustee.
4.3 Second Supplemental Indenture dated as of June 10, 1997 by and
among, inter alia, the Company and Texas Commerce Bank National Association,
Trustee.
4.4 Form of 8 3/4% Senior Subordinated Note (set forth in Sections
2.1 and 2.2 of the Second Supplemental Indenture filed as Exhibit 4.3).
4.5 Form of Notation of Subsidiary Guarantee of 8 3/4% Senior
Subordinated Note (set forth in Section 2.3 of the Second Supplemental
Indenture filed as Exhibit 4.3).
5.1 Opinion of Peter E. Lorenzen, Esquire, as to the legality of
the Notes and the Subsidiary Guarantees.
23.1 Consent of Peter E. Lorenzen, Esquire, to the use of his
opinion filed as Exhibit 5.1 (set forth in his opinion filed as Exhibit 5.1).
25.1 Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939, as amended, of Texas Commerce Bank National Association.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SNYDER OIL CORPORATION
Date: June 10, 1997 By: /s/ Peter E. Lorenzen
Peter E. Lorenzen,
Vice President
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EXHIBIT INDEX
Exhibit Number and Description
1.1 Underwriting Agreement dated June 5, 1997 by and among the
Company, the Subsidiary Guarantors (as therein defined), NationsBanc Capital
Markets, Inc., Chase Securities Inc., Smith Barney Inc. and Petrie Parkman &
Co., Inc.
4.1 Indenture dated as of June 10, 1997 by and between the Company
and Texas Commerce Bank National Association, Trustee.
4.2 First Supplemental Indenture dated as of June 10, 1997 by and
between the Company and Texas Commerce Bank National Association, Trustee.
4.3 Second Supplemental Indenture dated as of June 10, 1997 by and
among, inter alia, the Company and Texas Commerce Bank National Association,
Trustee.
4.4 Form of 8 3/4% Senior Subordinated Note (set forth in Sections
2.1 and 2.2 of the Second Supplemental Indenture filed as Exhibit 4.3).
4.5 Form of Notation of Subsidiary Guarantee of 8 3/4% Senior
Subordinated Note (set forth in Section 2.3 of the Second Supplemental
Indenture filed as Exhibit 4.3).
5.1 Opinion of Peter E. Lorenzen, Esquire, as to the legality of
the Notes and the Subsidiary Guarantees.
23.1 Consent of Peter E. Lorenzen, Esquire, to the use of his
opinion filed as Exhibit 5.1 (set forth in his opinion filed as Exhibit 5.1).
25.1 Form T-1 Statement of Eligibility of Trustee under the Trust
Indenture Act of 1939, as amended, of Texas Commerce Bank National Association.
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EXHIBIT 1.1
SNYDER OIL CORPORATION
8 3/4% SENIOR SUBORDINATED NOTES DUE 2007
UNDERWRITING AGREEMENT
June 5, 1997
NationsBanc Capital Markets, Inc.
Chase Securities Inc.
Smith Barney Inc.
Petrie Parkman & Co., Inc.
c/o NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
Dear Sirs:
SECTION 1. Introductory. Snyder Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters"), $175,000,000
aggregate principal amount of its 8 3/4% Senior Subordinated Notes due 2007
(the "Securities"). The Securities are to be issued pursuant to the provisions
of an indenture, to be dated as of June 10, 1997 (the "Original Indenture"),
between the Company and Texas Commerce Bank National Association, as Trustee
(the "Trustee"), a first supplement to the Original Indenture, to be dated as
of June 10, 1997 (the "First Supplemental Indenture"), between the Company and
the Trustee, and a second supplement to the Original Indenture, to be dated as
of June 10, 1997 (the "Second Supplemental Indenture" and, together with the
Original Indenture and the First Supplemental Indenture, the "Indenture"),
among the Company, certain subsidiaries of the Company (the "Subsidiary
Guarantors") and the Trustee. As provided in the Indenture, the
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Securities are to be guaranteed on a senior subordinated basis pursuant to
guarantees (the "Subsidiary Guarantees") by the Subsidiary Guarantors, provided
that the Subsidiary Guarantees will terminate under certain circumstances. The
Company and the Subsidiary Guarantors hereby agree with the Underwriters as
follows:
SECTION 2. Representations, Warranties and Agreements of the
Company and the Subsidiary Guarantors. The Company and the Subsidiary
Guarantors, jointly and severally, represent and warrant to, and agree with,
the several Underwriters that:
(a) The Company meets the requirements for use of Form
S-3 under the Securities Act of 1933, as amended (the "Act"), and two
registration statements on Form S-3 (Nos. 33-52807 and 333-27363),
including a prospectus, relating to the Securities have been filed
with and declared effective by the Securities and Exchange Commission
(the "Commission"). Such registration statements as amended at the
time when each of them became effective, including information (if
any) contained in a prospectus subsequently filed with the Commission
and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Act, or, if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, as amended by such post-effective amendment, are
hereinafter referred to collectively as the "Registration Statement,"
and the prospectus and prospectus supplement in the form first used to
confirm sales of Securities are hereinafter referred to collectively
as the "Prospectus." No stop order suspending the effectiveness of
the Registration Statement has been issued and no proceeding for that
purpose has been initiated or, to the knowledge of the Company,
threatened by the Commission.
(b) When the Registration Statement became effective and
at all times subsequent thereto up to the Closing Date hereinafter
mentioned, the Registration Statement and the Prospectus, and any
amendments or supplements thereto, have conformed and will conform in
all material respects with the requirements of the Act and the rules
and regulations (the "Rules and Regulations") of the Commission
thereunder, and at such effective time the Registration Statement did
not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectus, as amended
or supplemented at the Closing Date, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein, in the light
of the circumstances under which they were made, not misleading;
except that the foregoing does not apply to (i) that part of the
Registration Statement that constitutes the Statement of Eligibility
and Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended (the "1939
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Act"), of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented
if applicable, based upon written information furnished to the Company
by any Underwriter through you specifically for use therein.
(c) The consolidated financial statements included in the
Registration Statement and Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as
at the dates indicated and the results of their operations and the
changes in their consolidated financial position for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as indicated therein; and
the supporting schedules included in the Registration Statement
present fairly the information required to be stated therein. The pro
forma financial statements included in the Prospectus have been
prepared on a basis consistent with such historical statements, except
for the pro forma adjustments specified therein, and give effect to
the assumptions made on a reasonable basis and present fairly the
information specified therein. The reserve reports of Netherland,
Sewell & Associates, Inc. ("Netherland Sewell") and Ryder Scott
Company Petroleum Engineers ("Ryder Scott") present the proved
reserves, future net revenues therefrom and discounted present value
thereof in compliance with the applicable Rules and Regulations, and
all of the information furnished by the Company to Netherland Sewell
and Ryder Scott and used in connection with the preparation of such
reports (including, but not limited to, information regarding working
interests, net revenue interests and pricing) was true and correct in
all material respects as of the applicable effective date of such
reports and audits and conformed with the applicable Rules and
Regulations. The other financial and statistical information and data
set forth in the Registration Statement and the Prospectus are
accurately presented and prepared on a basis consistent with such
financial statements or reserve reports or audits and the books and
records of the Company.
(d) Since the date as of which information is given in
the Prospectus, except as otherwise stated therein, (i) there has been
no material adverse change in the condition, financial or otherwise,
earnings, affairs or business prospects of the Company and the
Subsidiaries (as hereinafter defined) considered as a whole, whether
or not arising in the ordinary course of business and (ii) there have
been no material transactions entered into by the Company or any of
the Subsidiaries other than those in the ordinary course of business.
(e) The documents which are incorporated by reference in
the Registration Statement and the Prospectus, and any amendments or
supplements thereto, when they were
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filed with the Commission or were or hereafter are last amended,
complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
the Rules and Regulations promulgated under the Exchange Act, and when
read together with the information in the Prospectus, no such
document, when it was filed with the Commission or was or hereafter is
last amended, contained or will contain an untrue statement of a
material fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading.
(f) The Company is a corporation duly organized and
validly existing in good standing under the laws of the State of
Delaware, and is duly registered and qualified to conduct its business
and is in good standing in each jurisdiction or place where the nature
of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register
or qualify will not have a material adverse effect on the business,
prospects, financial condition or results of operations of the Company
and the Subsidiaries, taken as a whole.
(g) All the outstanding shares of common stock, par value
$.01 per share ("Common Stock"), and preferred stock, par value $.01
per share ("Preferred Stock"), of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and
are free of any preemptive or similar rights. There are no
outstanding options, warrants or other rights to acquire from the
Company any capital stock except pursuant to the stock option plans
and agreements referred to and otherwise described or incorporated by
reference in the Registration Statement or the Prospectus.
(h) The Subsidiary Guarantees have been duly authorized
and, when issued and delivered pursuant to this Agreement, will have
been duly executed, authenticated, issued and delivered and will
constitute valid and binding obligations of the Subsidiary Guarantors;
and the Subsidiary Guarantees will conform to the descriptions thereof
in the Prospectus.
(i) The fair salable value of the assets of each of the
Company and the Subsidiary Guarantors exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and the
Subsidiary Guarantors, respectively, as they mature; the respective
assets of the Company and the Subsidiary Guarantors do not constitute
unreasonably small capital to carry out their respective businesses as
conducted or as proposed to be conducted; neither the Company nor the
Subsidiary Guarantors intend to, and do not believe that they will,
incur debts beyond their ability to pay such debts as they mature;
upon the issuance of the Securities and the Subsidiary Guarantees, the
fair salable value of the assets of the Company and the
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Subsidiaries, taken as a whole, will exceed the amount that will be
required to be paid on or in respect of the existing debts and other
liabilities (including contingent liabilities) of the Company and the
Subsidiaries, taken as a whole, as they mature; the assets of the
Company and the Subsidiaries do not, and upon the issuance of the
Securities and the Subsidiary Guarantees will not, constitute
unreasonably small capital for the Company and the Subsidiaries to
carry out their respective businesses as now conducted or as proposed
to be conducted including the capital needs of the Company and the
Subsidiaries, and projected capital requirements of the business
conducted by the Company and each of the Subsidiaries, and projected
capital requirements and capital availability thereof; and neither the
Company nor Subsidiary Guarantors intend to, and do not intend to
permit any of their subsidiaries to, incur debts beyond their
respective ability to pay such debts as they mature.
(j) Neither the Company nor any of the Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), or any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a material adverse effect on the business,
prospects, financial condition or results of operation of the Company
and the Subsidiaries, taken as a whole.
(k) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole.
(l) The Company and the Subsidiaries have all requisite
power and authority, and have obtained all necessary authorizations,
approvals, orders, licenses, franchises, certificates and permits of
and from all governmental regulatory officials and bodies ("Permits"),
including, without limitation, under any applicable Environmental
Laws, to own, lease and operate their respective properties and
conduct their respective businesses as described in the Registration
Statement and the Prospectus, except where the failure to obtain such
Permits will not have a material adverse effect on the business,
prospects, financial condition or
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results of operations of the Company and the Subsidiaries taken as a
whole. Each of the Company and the Subsidiaries has fulfilled and
performed all its current material obligations with respect to such
Permits and no event has occurred which allows, or after notice or
lapse of time, or both, would allow, revocation or termination thereof
or result in any other material impairment of the rights of the holder
of any such Permit, subject in each case to such qualification as may
be set forth in the Registration Statement and the Prospectus and
except where the failure to do so will not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and the Subsidiaries, taken as a whole.
Except as described in the Registration Statement and the Prospectus
and as is customary in the oil and gas industry or in the areas where
the properties of the Company or the Subsidiaries are located, such
Permits contain no restrictions that are materially burdensome to the
Company and the Subsidiaries, taken as a whole. The Company and the
Subsidiaries own, or possess adequate rights to use, all trademarks,
service marks and other rights necessary for the conduct of their
business as presently conducted and described in the Registration
Statement and the Prospectus, and neither the Company nor any of the
Subsidiaries has received any notice of conflict with the asserted
rights of others in any such respect that would materially adversely
affect their business and neither the Company nor any Subsidiary knows
of any basis therefor. The property and business of the Company and
the Subsidiaries taken as a whole conform in all material respects to
the descriptions thereof contained in the Registration Statement and
the Prospectus.
(m) All of the Company's subsidiaries that are required
to be listed in an exhibit to the Registration Statement or to any
document incorporated by reference therein are so listed
(collectively, the "Subsidiaries"). Each of the Subsidiaries of the
Company has been duly organized, is validly existing and in good
standing in the jurisdiction of its organization, has the requisite
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and is
duly qualified to transact business and is in good standing in each
jurisdiction or place in which it owns or leases properties or in
which the conduct of its business requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
the Subsidiaries considered as a whole; all of the issued and
outstanding capital stock of, or other equity interests in, each
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable and, except as set forth in the Prospectus, all
such capital stock or other equity interests of each Subsidiary is
owned by the Company, directly or through subsidiaries, free and clear
of any mortgage, pledge, lien, encumbrance, claim or equity except for
any lien granted pursuant to the bank credit facility referenced in
the Prospectus.
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(n) Neither the Company nor any of the Subsidiaries is in
violation of its or any of their charters or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it or any of
them is a party or by which it or any of them or their properties may
be bound; no consent, approval, authorization or order of any court or
governmental authority or agency is required for the consummation by
the Company or the Subsidiary Guarantors of the transactions
contemplated by this Agreement, except such as may be required under
the Act, the 1939 Act, the Rules and Regulations or state securities
or Blue Sky laws; and the execution and delivery of this Agreement,
the Original Indenture, the First Supplemental Indenture and the
Second Supplemental Indenture and the consummation of the transactions
contemplated herein and therein will not conflict with or constitute a
breach of, or default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which the Company or any of the Subsidiaries is a party or by which
it or any of them may be bound or to which any of the property or
assets of the Company or any of the Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter
or by-laws or other organizational documents of the Company or any
Subsidiary or any law, administrative regulation or administrative or
court decree.
(o) Except as set forth or incorporated by reference in
the Prospectus, there is no action, suit or proceeding before or by
any court or governmental agency or body, domestic or foreign, now
pending or, to the knowledge of the Company, threatened against or
affecting the Company or any of the Subsidiaries, which might result
in any material adverse effect on the business, prospects, financial
condition or results of operations of the Company and the
Subsidiaries, taken as a whole, or might materially and adversely
affect the properties or assets thereof or might materially and
adversely affect the offering of the Securities; and there are no
material contracts or other documents which are required to be filed
as exhibits to the Registration Statement by the Act or by the Rules
and Regulations which have not been so filed.
(p) Each of the Company and the Subsidiaries, except with
respect to its respective interests in oil and gas leases, has good
and marketable title in fee simple to all material real property owned
by it, valid and defensible title to all material personal property
owned by it and enforceable interests in leases of material real and
personal property owned
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by it, in each case free and clear of all security interests,
mortgages, pledges, liens, encumbrances, charges and defects except
(i) such as are referred to in the Prospectus or (ii) such as do not
materially adversely affect the value of such property to the Company
or such Subsidiary, and do not interfere with the use made and
proposed to be made of such property by the Company or such Subsidiary
to an extent that such interference would have a material adverse
effect on the Company or such Subsidiary. Each of the Company and the
Subsidiaries has good and defensible title to all of its respective
interests in oil and gas leases, free and clear of any encumbrances,
except encumbrances granted to secure the indebtedness specified in
the Registration Statement, subject only to liens for taxes or charges
of mechanics or materialmen not yet due and to encumbrances under gas
sales contracts, operating agreements, unitization and pooling
agreements and other similar agreements customarily found in
connection with comparable drilling and producing operations and to
title defects that are, singly and in the aggregate, not material in
amount and do not interfere with its use or enjoyment of its oil and
gas properties. Each of the Company and the Subsidiaries has
conducted such title investigations and has acquired its respective
interests in oil and gas leases in such manner as is customary in the
oil and gas industry. Each of the Company and the Subsidiaries has
complied in all material respects with the terms of the oil and gas
leases in which it purports to own an interest, and all of such leases
are in full force and effect (except where the failure so to comply or
to be in full force and effect would not have a material adverse
effect on the business, prospects, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole).
(q) Arthur Andersen LLP, the accountants for the Company
who have certified the financial statements and the related financial
statement schedules included in the Company's most recent Annual
Report on Form 10-K, which is incorporated by reference in the
Prospectus, are independent public accountants with respect to the
Company and the Subsidiaries as required by the Act.
(r) Netherland Sewell and Ryder Scott, whose reserve
reports are filed as exhibits to the Company's most recent Annual
Report on Form 10-K, are independent petroleum engineers with respect
to the Company and the Subsidiaries.
(s) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and is a valid
and binding agreement of the Company and the Subsidiary Guarantors,
except as rights to indemnity hereunder may be limited by applicable
law.
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(t) The Original Indenture has been duly authorized, and
when executed and delivered by the Company, will be a valid and
binding agreement of the Company that has been duly qualified under
the 1939 Act. The First Supplemental Indenture has been duly
authorized, and when executed and delivered by the Company, will be a
valid and binding agreement of the Company, and the execution and
delivery of the First Supplemental Indenture will not affect the
qualification of the Original Indenture under the 1939 Act. The
Second Supplemental Indenture has been duly authorized, and when
executed and delivered by the Company and the Subsidiary Guarantors,
will be a valid and binding agreement of the Company and the
Subsidiary Guarantors, and the execution and delivery of the Second
Supplemental Indenture will not affect the qualification of the
Original Indenture under the 1939 Act.
(u) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in
accordance with this Agreement, will be valid and binding obligations
of the Company and will be entitled to the benefits of the Indenture.
(v) The Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, without
taking account of any exemption arising out of the number of holders
of the Company's securities.
(w) To the Company's knowledge, neither the Company nor
any of the Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(x) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act
with respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities in
the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Act.
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(y) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(z) To the Company's knowledge, neither the Company nor
any of its Subsidiaries nor any employee or agent of the Company or
any Subsidiary has made any payment of funds of the Company or any
Subsidiary or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Prospectus.
(aa) Neither the Company nor any of the Subsidiaries is
involved in any labor dispute nor, to the knowledge of the Company, is
any such dispute threatened.
(bb) Each of the Company and the Subsidiaries has filed
all federal, state and local tax returns that are required to be filed
or has obtained extensions thereof, and has paid all taxes shown on
such returns and all assessments received by it to the extent that the
same have become due or is contesting such taxes in good faith by
appropriate proceedings.
(cc) Except for the shares of capital stock, or other
equity interests, of each of the Subsidiaries, neither the Company nor
any of the Subsidiaries owns any share of stock or any other
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity material in amount in
relation to the net assets of the Company and the Subsidiaries taken
as a whole, other than as disclosed in the Prospectus or as reflected
in the consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus.
SECTION 3. Purchase, Sale and Delivery of Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Underwriters, and each Underwriter agrees, severally and
not jointly, to purchase from the Company at a purchase price of 96.452% of the
principal amount per Security (the "purchase price per Security") plus accrued
interest, if any, from June 10, 1997 to the date of payment and delivery, the
respective principal amount of Securities set forth opposite such Underwriter's
name in Schedule I hereto.
The Company will deliver the Securities to you for the
accounts of the Underwriters, against payment of the purchase price therefor by
wire transfer payable in same day funds to the order of the Company, at the
office of NationsBanc Capital Markets, Inc., Charlotte, North Carolina
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at 10:00 A.M., Charlotte time, on June 10, 1997 or at such other place or time
not later than seven full business days thereafter as you and the Company
determine, such time being referred to herein as the "Closing Date."
The certificates for all the Securities so to be delivered
will be in such denominations and registered in such names as you request two
full business days prior to the Closing Date and will be made available at the
office of NationsBanc Capital Markets, Inc., Charlotte, North Carolina or, upon
your request, through the facilities of The Depository Trust Company, for
checking and packaging at least one full business day prior to the Closing
Date.
SECTION 4. Offering by Underwriters. After the Registration
Statement becomes effective, the several Underwriters will offer the Securities
for sale to the public on the terms as set forth in the Prospectus.
SECTION 5. Covenants of the Company and the Subsidiary
Guarantors. The Company and the Subsidiary Guarantors, jointly and severally,
covenant and agree with the several Underwriters that:
(a) The Company will advise you promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus,
and will not effect such amendment or supplement without your consent,
which will not be unreasonably withheld; the Company will also advise
you promptly of receipt of notification of the institution by the
Commission of any stop order proceedings in respect of the
Registration Statement or the initiation or threatening of any
proceeding for such purpose, and will use every reasonable effort to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(b) If, during such period of time after the first date
of the public offering of the Securities as in the opinion of counsel
for the Underwriters a prospectus relating to the Securities is
required by law to be delivered in connection with sales by an
Underwriter or dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would, in the judgment of
the Underwriters and their counsel, include an untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act or any other law, the Company
promptly will prepare and file with the Commission an
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amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance and will notify you
and, upon your request, prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance.
(c) The Company will make generally available to the
Company's security holders as soon as practicable an earning statement
covering a period of at least 12 months beginning after the date of
the Prospectus that satisfies the provisions of Section 11 (a) of the
Act and the Rules and Regulations (including Rule 158).
(d) The Company will deliver to each of you as many
signed and conformed copies of the registration statement (as
originally filed) and of each amendment thereto (including exhibits
filed therewith) as you may reasonably request and will also deliver
to you a conformed copy of the Registration Statement and each
amendment thereto for each of the Underwriters.
(e) The Company and the Subsidiary Guarantors will
endeavor, in cooperation with you, to qualify the Securities for
offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as you may designate, and
will maintain such qualifications in effect for as long as may be
required for the distribution of the Securities. The Company and the
Subsidiary Guarantors will file such statements and reports as may be
required by the laws of each jurisdiction in which the Securities have
been qualified as above provided.
(f) During the period of three years hereafter, the
Company will furnish to you and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year, and
the Company will furnish to you (i) as soon as available, a copy of
each report or definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and
(ii) from time to time, such other information concerning the Company
as you may reasonably request.
(g) The Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of its capital stock or debt securities to facilitate the sale
or resale of the Securities.
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SECTION 6. Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters to purchase and pay for the
Securities on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Subsidiary
Guarantors herein as of the date hereof and as of the Closing Date with the
same force and effect as if made as of that date, to the performance by the
Company and the Subsidiary Guarantors of their obligations hereunder and to the
following additional conditions precedent:
(a) Prior to the Closing Date no stop order suspending
the effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted, or to
the knowledge of the Company or you, shall be contemplated by the
Commission.
(b) You shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment or supplement
thereto, contains an untrue statement of fact or omits to state a fact
which, you have concluded, is material and in the case of an omission
is required to be stated therein or is necessary to make the
statements therein not misleading.
(c) You shall have received a favorable opinion of Peter
E. Lorenzen, General Counsel of the Company and the Subsidiary
Guarantors, dated the Closing Date to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of Delaware with corporate power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement; and the Company is
duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which it owns
or leases property or in which the conduct of its business
requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not
have a material adverse effect on the business, prospects,
condition (financial or other) or results of operations of the
Company and the Subsidiaries, taken as a whole.
(ii) Each of the Subsidiaries of the Company has
been duly organized and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
organization, has the requisite corporate power and authority
to own, lease and operate its properties and conduct its
business as described in the Registration
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Statement, and is duly qualified to transact business and is
in good standing in each jurisdiction or place in which it
owns or leases properties or in which the conduct of its
business requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the business,
prospects, condition (financial or other) or results of
operations of the Company and the Subsidiaries, taken as a
whole; all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued and is
fully paid and non-assessable, and all of such capital stock,
except as described in the Prospectus, is owned by the Company
free and clear of any perfected security interest, or, to the
best knowledge of such counsel, any other security interest,
lien, adverse claim or other encumbrance except for the lien
granted pursuant to the bank credit facility referenced in the
Prospectus.
(iii) The authorized and outstanding capital stock
of the Company is as set forth under the caption
"Capitalization" in the Prospectus; all the outstanding shares
of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable.
(iv) This Agreement has been duly authorized,
executed and delivered by the Company and the Subsidiary
Guarantors, and constitutes a valid and binding agreement of
the Company and the Subsidiary Guarantors, except as rights to
indemnity hereunder may be limited by applicable law.
(v) The Original Indenture has been duly
authorized, executed and delivered by the Company, is a valid
and binding agreement of the Company, conforms in all material
respects to the applicable requirements of the 1939 Act and
has been duly qualified under the 1939 Act; the First
Supplemental Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement
of the Company; the Second Supplemental Indenture has been
duly authorized, executed and delivered by the Company and the
Subsidiary Guarantors and is a valid and binding agreement of
the Company and the Subsidiary Guarantors.
(vi) The Securities have been duly authorized and,
when executed and authenticated in accordance with the
provisions of the Indenture, and delivered to and paid for by
the Underwriters in accordance with the terms of this
Agreement, will be valid and binding obligations of the
Company and will be entitled to the benefits of the Indenture.
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(vii) The Subsidiary Guarantees have been duly
authorized, executed and delivered by the Subsidiary
Guarantors and, when the Securities have been duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Subsidiary
Guarantees will constitute valid and binding obligations of
the Subsidiary Guarantors; the Subsidiary Guarantees do not
violate any law applicable to the Subsidiary Guarantors or the
offering and issuance of the Securities and the Subsidiary
Guarantees.
(viii) The form of certificate for the Securities
contemplated by the Indenture conforms to the requirements of
New York law.
(ix) The Registration Statement is effective under
the Act and no stop order suspending the effectiveness of the
Registration Statement has been issued under the Act or
proceedings therefor initiated or, to the best knowledge of
such counsel, threatened by the Commission.
(x) Statements set forth in the Prospectus under
the headings "Risk Factors--Environmental and Other
Regulation", "Description of the Credit Facility" and
"Description of Notes" and as set forth in the Company's
Annual Report on Form 10-K for the year ended December 31,
1996 under the headings "Business and Properties--Regulation"
and "Legal Proceedings" insofar as such statements constitute
a summary of the legal matters, documents or proceedings
referred to therein fairly present the information called for
with respect to such legal matters, documents and proceedings.
(xi) To the best knowledge of such counsel,
neither the Company nor any of the Subsidiaries (A) is in
violation of its charter or bylaws, (B) is in breach of, or in
default (nor has an event occurred that with notice, lapse of
time or both would constitute such a default) under any
indenture, mortgage, deed of trust, note, bond, debenture,
bank loan or credit agreement, or any other evidence of
indebtedness, agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which any of them or
any of their property is or may be bound or affected, (C) is
in violation of any law, ordinance, administrative or
governmental rule or regulation applicable to the Company or
any of the Subsidiaries or of any decree of any court or
governmental agency or body having jurisdiction over the
Company or
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<PAGE> 16
any of the Subsidiaries or (D) has received any notice of
conflict with the asserted rights of others in respect of
trademarks, service marks or other rights necessary for the
conduct of their business, in each case in which such breach,
default, violation or conflict would have a material adverse
effect on the business, properties or operations of the
Company and the Subsidiaries taken as a whole.
(xii) No consent, approval, authorization or order
of any court or governmental authority or agency is required
in connection with the transactions contemplated by this
Agreement, except such as may be required under the Act, the
1939 Act, the Rules and Regulations or state securities or
Blue Sky laws; and, to the best knowledge of such counsel, the
execution and delivery of this Agreement, the Securities, the
Subsidiary Guarantees, the Original Indenture, the First
Supplemental Indenture and the Second Supplemental Indenture
and the consummation of the transactions contemplated herein
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of the Subsidiaries pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or
other instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company
or any of the Subsidiaries is subject, nor will such action
result in any violation of the provisions of the charter or
bylaws of the Company, or any law, administrative regulation
or administrative or court decree.
(xiii) To the best knowledge of such counsel, there
is no legal or governmental proceeding pending or threatened
to which the Company or any of the Subsidiaries is a party or
to which any of the properties of the Company or any
Subsidiary is subject that is required to be described in the
Prospectus and is not so described or any material contract or
other document that is required to be described in the
Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that is not so described
or filed as required.
(xiv) To the best knowledge of such counsel, each
of the Company and the Subsidiaries holds all necessary
governmental authorizations, approvals, orders, licenses,
certificates, franchises and permits of and from all
governmental regulatory officials and bodies, including,
without limitation, under any applicable Environmental Laws,
for the conduct of the material businesses in which it is
engaged and owns, or possesses adequate rights to use all
material rights necessary for the conduct of such businesses,
and to such counsel's knowledge, none of the
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<PAGE> 17
Company or the Subsidiaries has received any notice of
conflict with the asserted rights of others in respect
thereto, except where the failure to hold, or the conflict
with the asserted rights of others with respect to, such
authorizations, approvals, orders, licenses, certificates,
franchises or permits would not have a material adverse effect
on the business, prospects, condition (financial or other) or
results of operations of the Company and the Subsidiaries,
taken as a whole.
(xv) Except as described in the Prospectus, such
counsel knows of no outstanding option, warrant or other right
calling for the issuance of, and such counsel knows of no
commitment, plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into or
exchangeable or exercisable for capital stock of the Company;
and except as described in the Prospectus, such counsel does
not know of any holder of any securities of the Company or any
other person who has the right, contractual or otherwise, to
cause the Company to issue to such holder or such person, or
permit such holder or such person to underwrite the sale of,
any shares of capital stock of the Company upon and as the
result of the issuance and sale of the Securities to you
hereunder or the right to require registration under the Act
of an offering of shares of capital stock of the Company as a
result of the filing of the Registration Statement.
(xvi) Such counsel is of the opinion that the
Registration Statement (other than the financial statements
included therein, as to which no opinion need be expressed)
complies as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
(xvii) Although such counsel is not passing upon and
does not assume any responsibility for the accuracy or
completeness of the statements contained in the Registration
Statement and Prospectus (except with respect to paragraphs
(iii), (x) and (xvi) above), such counsel advises you that, on
the basis of his participation in conferences with other
officers and employees of the Company, representatives of the
independent accountants and independent petroleum consultants
of the Company and representatives of the Underwriters at
which the contents of the Registration Statement and the
Prospectus and related matters were discussed, no facts have
come to his attention that lead him to believe that the
Registration Statement or any amendment thereof (other than
the financial statements and the notes thereto and the
schedules and other financial, statistical and engineering
data or information included
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therein and the exhibits thereto and that part of the
Registration Statement that constitutes the Form T-1), at the
time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any supplement
thereto (other than the financial statements and the notes
thereto and the schedules and other financial, statistical and
engineering data or information included therein), as of its
date or the Closing Date, as the case may be, contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
are made, not misleading.
(d) You shall have received from Baker & Botts, L.L.P.,
counsel for the Underwriters, an opinion, dated such Closing Date,
with respect to the matters set forth in subparagraphs (iv), (v),
(vi), (x) (but only as to the statements in the Prospectus under
"Description of Notes") and (xvii) of paragraph (c) of this Section.
(e) At the Closing Date there shall not have been, since
the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, earnings,
business affairs or business prospects of the Company and the
Subsidiaries considered as a whole, whether or not arising in the
ordinary course of business, and you shall have received a certificate
of an executive officer of each of the Company and the Subsidiary
Guarantors, dated as of the Closing Date, to the foregoing effect and
to the further effect that the representations and warranties of the
Company and the Subsidiary Guarantors contained in Section 2 are true
and correct with the same force and effect as though made on and as of
the Closing Date.
(f) You shall have received from Arthur Andersen LLP,
independent public accountants, two letters, the first delivered the
day of but prior to the execution of, and dated the date of, this
Agreement and the other dated the Closing Date, addressed to the
Underwriters (with conformed copies for each of the Underwriters), in
the form heretofore agreed (and in the case of the second such letter
consistent with the first such letter) with such variations as are
reasonably acceptable to you.
(g) At the Closing Date, counsel for the Underwriters
shall have been furnished with such other documents and opinions as
they may reasonably require.
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SECTION 7. Payment of Expenses. The Company and its
Subsidiaries, jointly and severally, will pay all costs, expenses, fees and
taxes incident to (i) the preparation by the Company, printing, filing and
distribution under the Act of the Registration Statement (including financial
statements and exhibits), the Prospectus, each preliminary prospectus and all
amendments and supplements to any of them prior to or during the period
specified in Section 5(b), (ii) the preparation, printing (including word
processing and duplication costs) and delivery of this Agreement, the Original
Indenture, the First Supplemental Indenture, the Second Supplemental Indenture,
Preliminary and Supplemental Blue Sky Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities, (iii) the registration with the
Commission, and the issuance by the Company of the Securities (iv) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as described in Section 5(e)
(including the reasonable fees and disbursements of your counsel relating to
such registration or qualification), (v) the fees and expenses of rating
agencies and (vi) the performance by the Company and the Subsidiary Guarantors
of their other obligations under this Agreement.
If this Agreement is terminated by you in accordance with the
provisions of Section 6 or Section 10(i), the Company shall reimburse you for
all of your out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
SECTION 8. Indemnification and Contribution. (a) Each of the
Company and the Subsidiary Guarantors, jointly and severally, agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities or judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action,
suit or proceeding or any claim asserted) arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by any
Underwriter through you expressly for use therein; provided, however, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Underwriter (or
any person who controls such Underwriter) from whom the person asserting any
such losses, claims,
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damages or liabilities purchased the Securities concerned, to the extent that
any such loss, claim, damage, liability or judgement of such Underwriter
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus if the Company had previously furnished copies
thereof to such Underwriter and such untrue statement or omission or alleged
untrue statement or omission made in a preliminary prospectus was corrected in
the Prospectus. This indemnity agreement will be in addition to any liability
which the Company or the Subsidiary Guarantors may otherwise have to the
persons referred to above in this Section 8(a).
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, the Subsidiary Guarantors, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use in the Registration Statement, the Prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
(c) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (hereinafter called the
indemnified party) shall promptly notify the person against whom such indemnity
may be sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any others the
indemnifying party may designate and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such action or proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the reasonable
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fees and expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control Underwriters
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and (b) the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, the
Subsidiary Guarantors, the directors of the Company, the officers of the
Company who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of
Underwriters, such firm shall be designated in writing by NationsBanc Capital
Markets, Inc. In the case of any such separate firm for the Company, the
Subsidiary Guarantors, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in this Section 8
is unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Subsidiary Guarantors on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Subsidiary Guarantors on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Subsidiary Guarantors on the one hand
and the Underwriters on the other shall be deemed to be in the same proportions
as the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the
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Prospectus. The relative fault of the Company and the Subsidiary Guarantors on
the one hand and the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the Company, the Subsidiary Guarantors or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) The Company, the Subsidiary Guarantors and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to Section 8(d) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 8(d), in no event shall any
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which each Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to Section 8(d) are several in proportion to the respective
principal amount of Securities set forth opposite their names in Schedule I
hereto.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted hereto, including indemnity and contribution agreements, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of any Underwriter or any
person controlling any Underwriter by or on behalf of the Company, the
Subsidiary Guarantors, the officers or directors of the Company, and shall
survive acceptance and payment for the Securities hereunder.
SECTION 10. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
This Agreement may be terminated for any reason at any time
prior to the Closing Date by NationsBanc Capital Markets, Inc. upon the giving
of written notice of such termination to
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the Company, if prior to the Closing Date (i) there has been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or
otherwise, earnings, business affairs or business prospects of the Company and
the Subsidiaries considered as a whole, whether or not arising in the ordinary
course of business, or (ii) there has occurred any outbreak or escalation of
hostilities or other calamity or crisis or material change in existing
financial, political, economic or securities market conditions, the effect of
which is such as to make it, in the judgment of NationsBanc Capital Markets,
Inc., impracticable or inadvisable to market the Securities in the manner
contemplated in the Prospectus or enforce contracts for the sale of the
Securities, or (iii) trading in the Common Stock or Preferred Stock of the
Company has been suspended by the Commission or the New York Stock Exchange, or
trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal, New York or Texas authorities. In the event of any such termination,
the provisions of Section 7, the indemnity agreement and contribution
provisions set forth in Section 8, and the provisions of Sections 9 and 14
shall remain in effect.
SECTION 11. Default. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Securities that it or
they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Securities to be purchased
on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 3 be increased pursuant to this Section 11 by an amount in
excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any
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non-defaulting Underwriter, Subsidiary Guarantor or the Company. In any such
case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
SECTION 12. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to you c/o NationsBanc Capital Markets, Inc.,
100 North Tryon Street, Charlotte, North Carolina 28255, Attention: Syndicate;
notices to the Company and the Subsidiary Guarantors shall be directed to them
at Snyder Oil Corporation, 777 Main Street, Fort Worth, Texas 76102, attention
of the Secretary with copy to the Treasurer.
SECTION 13. Parties. This Agreement shall inure to the
benefit of and be binding upon the Company, the Subsidiary Guarantors, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person, firm or corporation
any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Counterparts. This Agreement may be signed in
two or more counterparts each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
24
<PAGE> 25
If the foregoing is in accordance with your understanding of
our agreement, please sign this Agreement and return it to us.
Very truly yours,
SNYDER OIL CORPORATION
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President - Finance
SUBSIDIARY GUARANTORS:
DELMAR PETROLEUM, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
MEXICAN FLATS SERVICE COMPANY
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
SNYDER FLUID TECHNOLOGIES, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
25
<PAGE> 26
SNYDER GAS MARKETING, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
SOCO GAS SYSTEMS, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
SOCO HOLDINGS, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
SOCO LOUISIANA LEASING, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
SOCO OFFSHORE, INC.
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
26
<PAGE> 27
WESTERN TRANSMISSION
CORPORATION
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
WYOMING GATHERING AND
PRODUCTION COMPANY
/s/ James H. Shonsey
------------------------------------
James H. Shonsey
Vice President
Confirmed and Accepted, as of the date
first above written:
NATIONSBANC CAPITAL MARKETS, INC.
CHASE SECURITIES INC.
SMITH BARNEY INC.
PETRIE PARKMAN & CO., INC.
As Underwriters.
By: NATIONSBANC CAPITAL MARKETS, INC.
By: /s/ J.G. Weinmann, Jr.
------------------------------------
Name: J.G. Weinmann, Jr.
------------------------------
Title: Managing Director
-----------------------------
27
<PAGE> 28
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
Of Securities To
Underwriter Be Purchased
----------- ----------------
<S> <C>
NationsBanc Capital Markets, Inc. $ 87,500,000
Chase Securities Inc. 52,500,000
Smith Barney Inc. 26,250,000
Petrie Parkman & Co., Inc. 8,750,000
------------
Total $175,000,000
============
</TABLE>
28
<PAGE> 1
EXHIBIT 4.1
================================================================================
SNYDER OIL CORPORATION
AND
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
TRUSTEE
_______________
INDENTURE
DATED AS OF JUNE 10, 1997
________________
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
SNYDER OIL CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF JUNE 10, 1997
________________
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
<S> <C> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 613
Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d)
Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 103
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
</TABLE>
_____________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bank Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL or CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Junior Subordinated Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Non-Payment Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Payment Blockage Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Payment Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Permitted Junior Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Refinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Securities Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 102. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 105. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 108. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . 17
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 204. Form of Legend for Book-Entry Securities. . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . 30
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . . . . . . . . . . . . 36
SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
</TABLE>
-iii-
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<TABLE>
<S> <C> <C>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . 40
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest 44
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 49
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . 51
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 54
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . 54
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . 56
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . 57
</TABLE>
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<TABLE>
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SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . 58
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . 59
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . 60
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . 62
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . 64
SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . 68
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
</TABLE>
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<TABLE>
ARTICLE TWELVE
SINKING FUNDS
<S> <C> <C>
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . 72
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1303. No Payment When Designated Senior Indebtedness in Default . . . . . . . . . . . . . . . . 73
SECTION 1304. Payment Permitted if No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 75
SECTION 1306. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1307. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . 77
SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . . . . . . . . . . . . 78
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1313. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1314. Application by Trustee of Assets Deposited with It . . . . . . . . . . . . . . . . . . . . 78
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . 81
</TABLE>
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<TABLE>
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TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
</TABLE>
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<PAGE> 10
INDENTURE, dated as of June 10, 1997 between SNYDER OIL
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
777 Main Street, Suite 2500, Fort Worth, Texas 76102, and Texas Commerce Bank
National Association, a national banking association duly organized and
existing under the laws of the United States, as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its corporate
trust business is administered being Dallas, Texas.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of subordinated indebtedness (herein
called the "Securities"), to be issued in one or more series as in this
Indenture provided.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United
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<PAGE> 11
States, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States at the date
of such computation; and
(3) 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.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means NationsBank of Texas, N.A., when acting in its
capacity as agent under the Bank Credit Facility and any other Person acting as
agent, trustee or other fiduciary under the Bank Credit Facility, when acting
in such capacity.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in connection with which
the term is used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
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"Bank Credit Facility" means the Fourth Restated
Credit Agreement dated July 1, 1993 among the Company, the lenders
named therein and the Agent, as heretofore amended and as the same may be
further amended, restated, supplemented or otherwise modified from time to
time, and any Refinancings thereof that may be effected, whether or not with
the same lenders or the same Agent and whether or not the principal amount
outstanding thereunder shall be thereby increased.
"Bearer Security" means any Security in the form established
pursuant to Section 201 which is payable to bearer, including, without
limitation, unless the context otherwise indicates, a Security in temporary or
permanent global bearer form.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend
specified in Section 204, evidencing all or part of a series of Securities,
issued to the Depository for such series or its nominee, and registered in the
name of such Depository or nominee. Book-Entry Securities shall not be deemed
to be securities in global form for purposes of Sections 201 and 203 and
Article Three of this Indenture.
"Business Day", when used with respect to any Place of
Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of Payment are authorized
or obligated by law to close.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison De Valeurs
Mobiliers S.A., or, if any time after the execution of this instrument,
Centrale de Livraison de Valeurs Mobiliers S.A. is not existing and performing
the duties now being performed by it, then the successor Person performing such
duties.
"Certification Date" means with respect to Securities of any
series (i) if Bearer Securities of such series are not to be initially
represented by a temporary global Security, the date of delivery of the
definitive Bearer Security and (ii), if Bearer Securities of such series are
initially represented by a temporary global Security, the earlier of (A) the
Exchange Date with respect to Securities of such series and (B), if the first
Interest Payment Date with respect to Securities of such series is prior to
such Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this instrument
such Commission is not existing and performing the
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<PAGE> 13
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant
Controller, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in Dallas, Texas at which at any particular time its corporate trust
business shall be principally administered.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more
Book-Entry Securities, the clearing agency registered under the Securities
Exchange Act of 1934, as amended, specified for that purpose as contemplated by
Section 301.
"Designated Senior Indebtedness" means (i) all Senior
Indebtedness under the Bank Credit Facility if the sum of the aggregate
principal amount outstanding under the Bank Credit Facility and the aggregate
amount available for borrowing thereunder is equal to or greater than
$25,000,000 and (ii) all other Senior Indebtedness having an outstanding
principal amount equal to or greater than $25,000,000; provided, however, that
the agreements, indentures or other instruments evidencing any Senior
Indebtedness referred to in clause (ii) above specifically state that such
Senior Indebtedness shall be classified as "Designated Senior Indebtedness" for
purposes of this Indenture.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
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<PAGE> 14
"Holder", when used with respect to any Security, means in the
case of a Registered Security the Person in whose name the Security is
registered in the Security Register and in the case of a Bearer Security the
bearer thereof and, when used with respect to any coupon, means the bearer
thereof.
"Indebtedness", as applied to any Person, means all
indebtedness, whether or not represented by bonds, debentures, notes or other
securities, created or assumed by such Person for the repayment of money
borrowed, and obligations, computed in accordance with generally accepted
accounting principles, as lessee under leases that should be, in accordance
with generally accepted accounting principles, recorded as capital leases. All
Indebtedness secured by a lien upon property owned by the Company or any
Subsidiary and upon which Indebtedness such Person customarily pays interest,
although such Person has not assumed or become liable for the payment of such
Indebtedness, shall for all purposes hereof be deemed to be Indebtedness of
such Person. All Indebtedness of others guaranteed as to payment of principal
by such Person or in effect guaranteed by such Person through a contingent
agreement to purchase such Indebtedness shall for all purposes hereof be deemed
to be Indebtedness of such Person.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Judgment Currency" has the meaning specified in Section 506.
"Junior Subordinated Payment" means any payment or
distribution which may be payable or deliverable in respect of the Securities
by reason of the payment of any Indebtedness of the Company that is subordinate
in right of payment to the payment of the Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Non-Payment Event of Default" means any event, circumstance,
condition or state of facts (other than a Payment Event of Default) the
occurrence or existence of which permits one or more holders of Designated
Senior Indebtedness (or a trustee or other representative of the
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<PAGE> 15
holders thereof) to declare such Designated Senior Indebtedness immediately due
and payable prior to the date on which such indebtedness would otherwise become
due and payable.
"Obligation" of any Person means any obligation of such Person
to pay principal of or premium, if any, or interest (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company, whether or not a claim for such
post-petition interest is allowed in such proceeding) on any Indebtedness or
any penalties, reimbursement or indemnification amounts, fees, expenses or
other amounts in respect thereof.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, the Controller, the Secretary or an Assistant
Treasurer, Assistant Controller or Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto; provided, however, that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made; and
(c) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice,
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<PAGE> 16
consent or waiver hereunder, or whether a quorum is present at a meeting of
Holders of Securities, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding for such purposes shall be the
principal amount thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
502, (ii) the principal amount of a Security denominated in a foreign currency
shall be the U.S. dollar equivalent, determined by the Company on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent, determined on
the date of original issuance of such Security, of the amount determined as
provided in clause (i) above), of such Security and (iii) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver or upon any such determination as to the presence of a
quorum, only Securities which the Trustee knows to be 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
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person, which may include the
Company, authorized by the Company to pay the principal of (and premium, if
any) or interest on any one or more series of Securities on behalf of the
Company.
"Payment Blockage Period" has the meaning specified in Section
1303.
"Payment Event of Default" means any default in the payment of
principal of or premium, if any, or interest on or fees with respect to any
Designated Senior Indebtedness beyond any applicable grace period with respect
thereto.
"Permitted Junior Securities" means subordinated debt
securities of the Company (or any successor obligor with respect to the Senior
Indebtedness) provided for by a plan of reorganization or readjustment that are
subordinated in right of payment to all Senior Indebtedness that may be
outstanding to substantially the same extent as, or to a greater extent than,
the Securities are subordinated as provided in this Indenture.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of (and premium,
if any) and interest on the Securities of that series are payable as specified
in accordance with Section 301 subject to the provisions of Section 1002.
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"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains,
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which a mutilated, destroyed, lost or stolen
coupon appertains, as the case may be.
"Proceeding" means (subject to the last paragraph of Section
1302) (i) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, (ii) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (iii) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Refinance" means, with respect to any specified Indebtedness,
to incur additional Indebtedness and use the proceeds thereof to redeem,
repurchase, retire for value, refinance or refund such specified Indebtedness
(and the term "Refinancing" and "Refinanced" shall have meanings correlative to
the foregoing.)
"Registered Security" means any Security in the form
established pursuant to Section 201 which is registered in the Security
Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date
specified for that purpose as contemplated by Section 301, or, if not so
specified, the last day of the calendar month preceding such Interest Payment
Date if such Interest Payment Date is the fifteenth day of the calendar month
or the fifteenth day of the calendar month preceding such Interest Payment Date
if such Interest Payment Date is the first day of a calendar month, whether or
not such day shall be a Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice chairman of the board of directors, the chairman
or any vice chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any Vice President, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier,
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any assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Payment" means any payment or distribution of any
kind or character, whether by way of set-off or otherwise and whether in cash,
property or securities (including any Junior Subordinated Payment) on account
of principal of or premium, if any, or interest on, or Additional Amounts with
respect to, the Securities or on account of any purchase, repurchase,
redemption or other acquisition of Securities by the Company.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means (a) all Obligations of the Company
under the Bank Credit Facility and (b) all other Indebtedness of the Company,
whether currently outstanding or hereafter issued; provided that "Senior
Indebtedness" shall not include (i) the Company's 7% Convertible Subordinated
Notes due 2001, (ii) the Company's 8% Convertible Subordinated Debentures and
6% Convertible Subordinated Debentures, if and when issued, for which the
Company's existing preferred stock is exchangeable, (iii) any Obligation owed
to a Subsidiary or an Affiliate of the Company, (iv) any Obligation that by the
terms of the instrument creating or evidencing the same is not superior in
right of payment to the Securities, and (v) any Obligation constituting a trade
account payable.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or coupon representing such installment of interest
as the fixed date on which the principal of such Security or such installment
of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
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"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed, except as
provided in Sections 905 and 1007.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its "possessions", which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the Company or by one or more other Wholly
Owned Subsidiaries, or by the Company and one or more other Wholly Owned
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Yield to Maturity", when used with respect to any Original
Issue Discount Security, means the yield to maturity, if any, set forth on the
face thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust
Indenture Act, the provision is incorporated by reference in and made a part of
this Indenture. The following Trust Indenture Act terms used in this Indenture
have the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the
United States Code.
"indenture securities" means the Securities.
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"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All the other Trust Indenture Act terms used in this Indenture
that are defined by the Trust Indenture Act, defined by Trust Indenture Act
reference to another statute or defined by Commission rule under the Trust
Indenture Act and not otherwise defined herein have the meanings assigned to
them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any,
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, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such Person,
such Person has made such examination or investigation as is necessary
to enable such Person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such Person, such condition or covenant has been complied with.
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SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate 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, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given by Holders of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in person
or by proxies duly appointed in writing, at a meeting of Holders of Securities
of such series duly called and held in accordance with the provisions of
Article Fourteen, or a combination of such instruments and any such records.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered
to the Trustee and, where it is hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 601) conclusive in
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favor of the Trustee and the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1406.
The Company may set a record date for purposes of determining
the identity of Holders of Registered Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture,
which record date shall be the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation. If a record date is fixed, those persons
who were Holders of Registered Securities at such record date (or their duly
designated proxies), and only those persons, shall be entitled with respect to
such Securities to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary or exhibited to it the Bearer Securities therein
described; or such facts may be proved by the certificate of the Person holding
such Bearer Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (i) another certificate
bearing a later date issued in respect of the same Bearer Security is produced,
(ii) such Bearer Security is produced to the Trustee by some other Person,
(iii) such Bearer Security is surrendered in exchange for a Registered
Security, or (iv) such Bearer Security is no longer Outstanding. The principal
amount and serial numbers of Bearer Securities held by any Person, and the date
of holding the same, may also be proved in any other manner which the Trustee
deems sufficient.
(e) In determining whether the Holders of the requisite principal
amount of Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver
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under this Indenture, the principal amount of an Original Issue Discount
Security that may be counted in making such determination and that shall be
deemed to be Outstanding for such purposes shall be equal to the amount of the
principal thereof that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 at the time the
taking of such action by the Holders of such requisite principal amount is
evidenced to the Trustee for such Securities.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security. Any consent or waiver of the Holder of any Security shall
be irrevocable for a period of six months after the date of execution thereof,
but otherwise any such Holder or subsequent Holder may revoke the request,
demand, authorization, direction, notice, consent, waiver or other Act as to
such Holder's Security or portion thereof. Such revocation shall be effective
only if the Trustee receives the notice of revocation before the date the Act
becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Global Trust Services, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company, Attention: Corporate Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) (a) to Holders of Registered Securities if
in writing and mailed, first-class postage prepaid, to each Holder affected by
such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice and (b) to Holders of Bearer
Securities if published in an Authorized Newspaper in the City of New York and
London or other capital city in Western Europe and in such other city or cities
as may
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be specified in such Bearer Securities on a Business Day at least twice, the
first such publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service,
or by reason of any other cause it shall be impracticable to give such notice
to Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute a sufficient
notification for every purpose hereunder. In any case in which notice to
Holders of Registered Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
of a Registered Security, shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be made
with the approval of the Trustee for such Securities shall constitute
sufficient notice to such Holders for every purpose hereunder. Neither the
failure to give notice by publication to Holders of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of any notice to Holders of Registered Securities given as provided
herein.
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. 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.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 111. Separability Clause.
In case any provision in this Indenture or in the Securities
(or any coupon appertaining thereto) shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities (or any coupon
appertaining thereto), express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder and the Holders and holders
of any Senior Indebtedness, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities (or any coupon appertaining
thereto) shall be governed by and construed in accordance with the laws of the
State of New York.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date
or Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities or coupons appertaining thereto) payment of principal and interest
(and premium and Additional Amounts, if any,) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against the
Trustee or any incorporator, subscriber to the capital stock, shareholder,
officer, director or employee of the Company or of any predecessor of the
Company with respect to the Company's obligations on the Securities or any
coupons appertaining thereto or the obligations of the Company or the Trustee
under this Indenture or any certificate or other writing delivered in
connection herewith.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the
Bearer Securities, if any, of each series and related coupons appertaining
thereto shall be in substantially such form or forms (including temporary or
permanent global form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or as may, consistently herewith, be determined by the officers executing such
Securities or coupons appertaining thereto, as evidenced by their execution of
the Securities or coupons appertaining thereto. If temporary Securities of any
series are issued in global form as permitted by Section 304, the form thereof
shall be established as provided in the preceding sentence. A copy of the
Board Resolution establishing the form or forms of Securities or coupons
appertaining thereto of any series (or any such temporary global Security)
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security) or coupons appertaining
thereto.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons appertaining thereto attached.
The definitive Securities and coupons appertaining thereto, if
any, shall be printed lithographed or engraved on steel engraved borders or may
be produced in any other manner, all as determined by the officers executing
such Securities or coupons appertaining thereto, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Texas Commerce Bank National Association
as Trustee
By_____________________________________
Authorized Signatory."
SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified in such
Security or in a Company Order to be delivered to the Trustee pursuant to
Section 303 or Section 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the
Person or Persons specified in such Security or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security in global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company or of the Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented
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by a global Security as shall be specified in a written statement, if any, of
the Holder of such global Security or, in the case of a global Bearer Security,
of Euro-clear or CEDEL S.A., which is produced to the Security Registrar by
such Holder.
Global Securities may be issued in either registered or bearer
form and in either temporary or permanent form. Permanent Global Securities
will be issued in definitive form.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. This Security is exchangeable for
Securities registered in the name of a Person other than the Depository or its
nominee only in the limited circumstances described in or pursuant to the
Indenture, and no transfer of this Security (other than a transfer of this
Security as a whole by the Depository to a nominee of the Depository or by a
nominee of the Depository to the Depository or another nominee of the
Depository) may be registered except in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107);
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(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons appertaining
thereto and, if so, whether beneficial owners of interests in any such
permanent global Security may exchange such interests for Securities
of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and the
Common Depositary for any global Security or Securities;
(4) the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(5) the date or dates on which the principal (and
premium, if any) of the Securities of the series is payable or the
method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear interest, if
any, whether and under what circumstances Additional Amounts with
respect to such Securities shall be payable, the date or dates from
which such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and, if other than as set forth in
Section 101, the Regular Record Date for the interest payable on any
Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of (and premium, if any) and interest,
if any, on, and any Additional Amounts with respect to, the Securities
of the series shall be payable;
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which, Securities of the series shall be
redeemed or purchased in whole or in part pursuant to such obligation;
(10) the denomination in which any Registered Securities
of that series shall be issuable, if other than denominations of
$1,000 and any integral multiple thereof, and the
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denomination in which any Bearer Securities of that series shall be
issuable, if other than the denomination of $5,000;
(11) the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to, the
Securities of the series shall be payable if other than the currency
of the United States of America;
(12) if the principal of (and premium,if any) or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including
composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of (and premium, if any)
and interest on, and any Additional Amounts with respect to,
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions
upon which such election is to be made;
(13) if the amount of payments of principal of (and premium,
if any) or interest on, and any Additional Amounts with respect to,
the Securities of the series may be determined with reference to an
index, the manner in which such amounts shall be determined;
(14) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(15) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
305;
(16) any additional means of satisfaction and discharge of
this Indenture with respect to Securities of the series pursuant to
Section 401, any additional conditions to discharge pursuant to
Section 401 or 403 and the application, if any, of Section 403;
(17) any deletions or modifications of or additions to the
Events of Default set forth in Section 501 or covenants of the Company
set forth in Article Ten pertaining to the Securities of the series;
and
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(18) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in the manner
provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of
any series that bears interest may be paid by mailing a check to the address of
any Holder as such address shall appear in the Security Register.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action together with such Board Resolution shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the series.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Thirteen.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series denominated in Dollars shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of such series denominated in Dollars shall be issuable in
the denominations of $5,000 and any integral multiple thereof. Unless
otherwise provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these
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officers on the Securities may be manual or facsimile. Coupons shall bear the
facsimile signature of the President or any Vice President of the Company.
Securities and coupons appertaining thereto bearing the manual
or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupons appertaining thereto, executed by the Company to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise; provided, however, that, in
connection with its sale, during the "restricted period" (as defined in Section
1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided, further, that a Bearer Security may (other than a
temporary global security in bearer form delivered as provided in Section 304)
be delivered outside the United States in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in Exhibit A to this Indenture,
or in such other form of certificate as shall contain information then required
by federal income tax laws and, if applicable, federal securities laws, dated
no earlier than the Certification Date. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a temporary
global Security shall be deemed to be delivery in connection with sale, during
the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the
United States Treasury Regulations) of such beneficial owner's interest in such
permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and cancelled.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 201, that
such form has been established in conformity with the provisions of
this Indenture;
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(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been established in conformity with the provisions of
this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, reorganization or other law relating to or
affecting creditors' rights and (ii) general principles of equity
(regardless of whether such enforcement is considered in a proceeding
in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
issuance of the first Bearer Security of such series to be issued.
No Security or coupon or coupons appertaining thereto shall be
entitled to any benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security, or the Security to which such
coupon appertains, a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not
comply with Section 103 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu
of which they are issued, in registered form or, if authorized, in bearer form
with one or more coupons
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appertaining thereto or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
In the case of any series issuable as Bearer Securities, such temporary
Securities may be in global form. A temporary Bearer Security shall be
delivered only in compliance with the conditions set forth in Section 303.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series; provided, however, that no Bearer Security shall be issued in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security (including interests in a permanent Global Security)
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303.
Any temporary global Bearer Security and any permanent global
security shall, unless otherwise provided therein, be delivered to the London
office of a depositary or common depositary (the "Common Depositary") for the
benefit of Euro-clear and CEDEL S.A. for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security of a series (the "Exchange Date"), the Company shall deliver to
the Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged; provided however, that unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then
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to be exchanged and a certificate dated the Exchange Date or a subsequent date
and signed by CEDEL S.A. as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit B to this Indenture. The definitive Securities to be delivered in
exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by Section 301,
and if any combination thereof is so specified, as requested by the beneficial
owner thereof.
Unless otherwise specified in the temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged on the Exchange Date for definitive
Securities (and where the form of the definitive Securities is not specified by
the Holder, for an interest in a permanent global Security) of the same series
and of like tenor unless, on or prior to the Exchange Date, such beneficial
owner has not delivered to Euro-clear or CEDEL S.A. as the case may be, a
certificate in the form set forth in Exhibit A to this Indenture dated no
earlier than the Certification Date, copies of which certificate shall be
available from the offices of Euro-clear and CEDEL S.A., the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent and after the Exchange Date, the interest of a beneficial owner of
Securities of a series in a temporary global Security shall be exchanged for
definitive Securities (and where the form of the definitive Securities is not
specified by the Holder, for an interest in a permanent global Security) of the
same series and of like tenor following such beneficial owner's delivery to
Euro-clear or CEDEL S.A. as the case may be, of a certificate in the form set
forth in Exhibit A to this Indenture dated no earlier than the Certificate
Date. Unless otherwise specified in such temporary global Security, any
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive Securities
must bear the cost of insurance, postage, transportation and the like in the
event that such Person does not take delivery of such definitive Securities in
person at the offices of Euro-clear or CEDEL S. A. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment and who have each delivered
to Euro-clear or CEDEL S.A., as the case may be, a certificate in the form set
forth in Exhibit A to this Indenture. Any interest so received by Euro-clear
or CEDEL S.A. and not paid as herein provided shall be returned to the Trustee
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immediately prior to the expiration of two years after such Interest Payment
Date in order to be repaid to the Company in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
1002 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities
of such series. The Trustee is hereby initially appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Registered
Security of any series at the office or agency in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series and
of like tenor, of any authorized denominations and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. Bearer
Securities may not be issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series
may be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States.
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Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series and like tenor after the close of business at such office or
agency on (a) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (b) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301,
then without unnecessary delay but in any event not later than the earliest
date on which such interests may be so exchanged, the Company shall deliver to
the Trustee definitive Securities of that series in an aggregate principal
amount equal to the principal amount of such permanent global Security,
executed by the Company. On or after the earliest date on which such interests
may be so exchanged, such permanent global Security shall be surrendered from
time to time in accordance with instructions given to the Trustee and the
Common Depositary (which instructions shall be in writing but need not comply
with Section 103 or be accompanied an Opinion of Counsel) by the Common
Depositary or such other depositary or Common Depositary as shall be specified
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or in part, for definitive
Securities of the same series without charge and the Trustee shall authenticate
and deliver, in exchange for each portion of such permanent global Security, a
like aggregate principal amount of other definitive Securities of the same
series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered Securities,
as specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of that series is to be redeemed and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the
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Common Depositary or such other depositary or Common Depositary referred to
above in accordance with the instructions of the Company referred to above. If
a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (a) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (b)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest
in respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but 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 registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on (i) if Securities of the series are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (ii) if Securities of the series are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption, or if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption or (b) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part or (c) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption.
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Notwithstanding the foregoing and except as otherwise
specified pursuant to Section 301, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 or Sections 304, 906 and 1107 for
Securities registered in the name of, and a transfer of a Book-Entry Security
of any series may be registered to, any Person other than the Depository for
such Security or its nominee only if (a) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (b) the
Company executes and delivers to the Trustee a Company Order that such
Book-Entry Security shall be so exchangeable and the transfer thereof so
registrable or (c) there shall have occurred and be continuing an Event of
Default, or an event which after notice or lapse of time would be an Event of
Default, with respect to the Securities of such series. Upon the occurrence in
respect of any Book-Entry Security of any series of any one or more of the
conditions specified in clauses (a), (b) or (c) of the preceding sentence or
such other conditions as may be specified, such Book-Entry Security may be
exchanged for Securities registered in the names of, and the transfer of such
Book-Entry Security may be registered to, such Persons (including Persons other
than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
204 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Book-Entry Security pursuant to the
preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee, the Company shall
execute and, upon Company Order, the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon appertaining thereto and (b) such security or indemnity as
may be required by them to save each of them and any agent of either of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and upon Company Order the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
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In case any such mutilated, destroyed, lost or stolen Security
or coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security; provided,
however, that the principal of and any premium and interest on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, 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 fee and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupons
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise provided with respect to the Securities of
any series, payment of interest may be made at the option of the Company (a) in
the case of Registered Securities, by check mailed or delivered to the address
of any Person entitled thereto as such address shall appear in the Security
Register, or (b) in the case of Bearer Securities, except as otherwise provided
in Section 1002, upon presentation and surrender of the appropriate coupon
appertaining thereto at an office or agency of the Company in a Place of
Payment located outside the United States or by transfer to an account
maintained by the payee with a bank located outside the United States.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture, upon registration of transfer of, in
exchange for or in lieu of, any other Security, shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for
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the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Registered Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, 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 a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment,
redemption, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities and matured
coupons so delivered shall be promptly cancelled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon instruction by a Company Order, shall be cancelled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order.
In the case of any temporary global Security, which shall be
disposed of if the entire aggregate principal amount of the Securities
represented thereby has been exchanged, the certificate of disposition shall
state that all certificates required pursuant to Section 304 hereof,
substantially in the form of Exhibit B hereto, to be given by the Euro-clear
operator or CEDEL
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S.A., have been duly presented to the Trustee for such Securities by the
Euro-clear operator or CEDEL S.A. as the case may be. Permanent global
Securities shall not be disposed of until exchanged in full for definitive
Securities or until payment thereon is made in full.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to Securities of a series, and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture with respect to Securities of such
series, when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306, (iii) coupons appertaining to Bearer Securities
called for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived as provided
in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) with respect to all Outstanding Securities of
such series and any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the
Trustee as trust funds, under the terms of an irrevocable
trust agreement in form and substance satisfactory to the
Trustee, for the purpose money or U.S. Government
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Obligations maturing as to principal and interest in such
amounts and at such times as will, together with the income to
accrue thereon, without consideration of any reinvestment
thereof, be sufficient to pay and discharge the entire
indebtedness on all Outstanding Securities of such series and
coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation for principal (and premium and
Additional Amounts, if any) and interest to the Stated
Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 401; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture with respect to the Outstanding
Securities of such series have been complied with.
For the purposes of this Indenture, "U.S. Government
Obligations" means direct non-callable obligations of, or non-callable
obligations the payment of principal of and interest on which is guaranteed by,
the United States of America, or to the payment of which obligations or
guarantees the full faith and credit of the United States of America is
pledged, or beneficial interests in a trust the corpus of which consists
exclusively of money or such obligations or a combination thereof.
If any Outstanding Securities of such series are to be
redeemed prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory sinking fund
requirement, the trust agreement shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series pursuant to
this Section 401, the obligations of the Company to the Trustee under Section
607, the obligations of the Trustee to any Authenticating Agent under Section
614 and, except for a discharge pursuant to subclause (A) of clause (1) of this
Section,
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the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities, the coupons 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 Persons entitled thereto, of the principal
(and premium, if any) and interest and Additional Amounts for the payment of
which such money has been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301,
to be applicable to Securities of any series, the Company shall be deemed to
have paid and discharged the entire indebtedness on all the Outstanding
Securities of such series, the obligation of the Company under this Indenture
and the Securities of such series to pay the principal of (and premium, if any)
and interest on Securities of such series, and any coupon appertaining thereto,
shall cease, terminate and be completely discharged and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging such
satisfaction and discharge, when
(1) the Company has complied with the provisions of
Section 401 of this Indenture (other than any additional conditions
specified pursuant to Sections 301 and 401(3)) with respect to all
Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company
Request requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions
specified pursuant to Section 301 to be applicable to the discharge of
Securities of such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the discharge of
the indebtedness on the Outstanding Securities of such series have
been complied with.
Upon the satisfaction of the conditions set forth in this
Section with respect to all the Outstanding Securities of any series, the terms
and conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided, however, that, the Company shall not be
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discharged from any payment obligations in respect of Securities of such series
which are deemed not to be Outstanding under clause (c) of the definition
thereof if such obligations continue to be valid obligations of the Company
under applicable law or pursuant to Section 305 or 306.
SECTION 404. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations deposited with respect to Securities of any series
in accordance with Section 401 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with Section 401; provided, however, that if the
Company has made any payment of principal or interest of (or premium, if any),
and any Additional Amounts with respect to, on any Securities because of 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 or
U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be occasioned by the
provisions of Article Thirteen or 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),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security
for such series:
(1) default in the payment of any interest or any
Additional Amounts upon any Security of that series when such interest
or Additional Amounts become due and payable, and continuance of such
default for a period of 30 days, whether or not such payment is
prohibited by Article Thirteen; or
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(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity,
whether or not such payment is prohibited by Article Thirteen; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series, and
continuance of such default for a period of 60 days, whether or not
such payment is prohibited by Article Thirteen; or
(4) default in the performance or breach of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such
default or breach for a period of 90 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 all Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or
(B) a decree or order adjudging the Company a bankrupt or insolvent,
or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a voluntary case
or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it, of a
petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts
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generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Notwithstanding the foregoing provisions of this Section 501,
if the principal of (and premium, if any) or any interest on, or Additional
Amounts with respect to, any Security is payable in a currency or currencies
(including a composite currency) other than Dollars and such currency (or
currencies) is (or are) not available to the Company for making payment thereof
due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company will be entitled to satisfy its obligations
to Holders of the Securities by making such payment in Dollars in an amount
equal to the Dollar equivalent of the amount payable in such other currency, as
determined by the Trustee by reference to the noon buying rate in The City of
New York for cable transfers for such currency ("Exchange Rate"), as such
Exchange Rate is reported or otherwise made available by the Federal Reserve
Bank of New York on the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange Rate.
Notwithstanding the foregoing provisions of this Section 501, any payment made
under such circumstances in Dollars where the required payment is in a currency
other than Dollars will not constitute an Event of Default under this
Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (a) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (b) all series of Securities (in the case of other Events of Default) may
declare the principal amount (or, if any such Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified
in the terms of that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series (or of all series, as the case may be) has
been made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities of that series (or
of all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
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(A) all overdue interest on, and any Additional
Amounts with respect to, all Securities of that series (or of
all series, as the case may be) and any coupons appertaining
thereto,
(B) the principal of (and premium, if any, on)
any Securities of that series (or of all series, as the case
may be) which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities (in the case
of Original Issue Discount Securities, the Securities' Yield
to Maturity),
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest and any Additional
Amounts at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on, or any Additional Amounts with respect to, any Security
of any series and any coupons appertaining thereto when such interest
or Additional Amounts shall have become due and payable and such
default continues for a period of 60 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal (and premium, if any) and interest
and Additional Amounts and, to the extent that
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payment of such interest shall be legally enforceable, interest on any overdue
principal (and premium, if any) and on any overdue interest and Additional
Amounts, at the rate or rates prescribed therefor in such Securities (or in the
case of Original Issue Discount Securities, the Securities' Yield to Maturity),
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) 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 on the Company
for the payment of overdue principal, interest or Additional Amounts) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (or lesser amount in the case of Original Issue Discount
Securities) (and premium, if any) and interest and any Additional
Amounts owing and unpaid in respect of the Securities or any coupons
appertaining thereto 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 the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceedings.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Subject to Article Thirteen, any money 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
money on account of principal (or premium, if any), interest or any Additional
Amounts, upon presentation of the Securities or coupons, or both as the case
may be, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To holders of Senior Indebtedness to the extent
required by Article Thirteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest and any Additional
Amounts on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal (and premium, if
any), interest and Additional Amounts, respectively; and
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FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the New York Business Day next
preceding that on which final judgment is given. Neither the Company nor the
Trustee shall be liable for any shortfall nor shall it benefit from any
windfall in payments to Holders of Securities under this Section caused by a
change in exchange rates between the time the amount of a judgment against it
is calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of
such series shall have occurred and be continuing and such Holder has
previously given written notice to the Trustee of such continuing
Event of Default;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
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preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Subject to Article Thirteen and notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have
the right, which is absolute and unconditional, to receive payment of the
principal of (and premium, if any) and (subject to Section 307) interest on
such Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities or coupons to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders may be exercised
from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
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SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a
majority in principal amount of the Outstanding Securities of such series 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, relating to or arising under an Event of
Default described in clause (1), (2), (3) or (7) of Section 501, and with
respect to all Securities the Holders of a majority in principal amount of all
Outstanding Securities shall have the right to direct the time, method and
place of conducting any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee, not relating to or arising under such
an Event of Default, provided that in each such case
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series relating to or arising under an Event of Default described in clause (3)
or (7) of Section 501 and its consequences, and the Holders of a majority in
principal amount of all Outstanding Securities may on behalf of the Holders of
all Securities waive any other past default hereunder and its consequences,
except in each case a default
(1) in the payment of the principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any
Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security or coupon by his acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require,
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in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities of any series, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security or the
payment of any coupon on or after the Stated Maturity or Maturities expressed
in such Security or coupon (or, in the case of redemption, on or after the
Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or
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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, on its face, to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) 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 willful misconduct, except
that
(1) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section
512, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series, as their names and addresses
appear in the Security Register, notice of such default
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hereunder actually known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in
the payment of the principal of (or premium, if any) or interest on, or any
Additional Amount with, any Security of such series or in the payment of any
sinking fund installment with respect to Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of Securities of
such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness 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 or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
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(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon, other
evidence of indebtedness or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; 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 and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
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 their
correctness. The Trustee makes no representations 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 Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any
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provision of law in regard to the compensation of a trustee of an
express trust) including extraordinary services such as default
administration;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the 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 the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium, if
any, or interest, if any, on, or Additional Amounts with respect to, particular
Securities. If the Trustee incurs expenses or renders services after an Event
of Default described in Sections 501(5) and 501(6), such expenses and the
Trustee's fees for such services are intended to constitute expenses of
administration under applicable bankruptcy law.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest,
as defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate such conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities of
any series, the Trustee shall, within 10 days after the expiration of such
90-day period, transmit by mail to all Holders of Securities of that series, as
their names and addresses appear in the Security Register, notice of such
failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the Trust
Indenture Act. For purposes of the preceding sentence, the optional provision
permitted by the second sentence of Section 310(b)(9) of the Trust Indenture
Act shall be applicable.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States
of America, any State thereof or the District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to supervision or examination by
federal or state authority. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of said 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. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the resigning Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a)
after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or
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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, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security 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 with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and such successor
Trustee or Trustees shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to all Holders of Securities of such series as their names and addresses appear
in the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor
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Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship described in Section 311 (b)
of the Trust Indenture Act. A Trustee who has resigned or been removed shall
be subject to Section 311 (a) of the Trust Indenture Act to the extent
indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia, or in
the case of an Authenticating Agent with respect to Securities issuable as
Bearer Securities, under the laws of any country in which such Bearer
Securities may be offered; authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 or
equivalent amount expressed in a foreign currency and subject to supervision or
examination by federal or state authority or authority of such country. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this
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Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternate certificate of authentication in the following
form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_____________________________________________
As Trustee
By __________________________________________
As Authenticating Agent
By ____________________________________
Authorized Signatory
Notwithstanding any provision of this Section 614 to the
contrary, if at any time any Authenticating Agent appointed hereunder with
respect to any series of Securities shall not also be acting as the Security
Registrar hereunder with respect to any series of Securities, then, in addition
to all other duties of an Authenticating Agent hereunder, such Authenticating
Agent shall also be obligated: (i) to furnish to the Security Registrar
promptly all information necessary to enable the Security Registrar to maintain
at all times an accurate and current Security Register; and (ii) prior to
authenticating any Security denominated in a foreign currency, to ascertain
from the Company the units of such foreign currency that are required to be
determined by the Company pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will
furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular
Record Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
that series as of such dates, and
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(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than 15
days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if so acting.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received by
the Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) Holders of Securities may communicate pursuant to Section 312
(b) of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 702(b), regardless of
the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request
made under Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year, commencing with the
first May 15 following the issuance of the first series of Securities
hereunder, the Trustee shall transmit by mail to Holders a brief report dated
as of such May 15 that complies with Section 313(a) of the Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail:
(1) to all Holders of Registered Securities, as the names
and addresses of such Holders appear in the Security Register;
(2) to such Holders of Bearer Securities as have, within
the two years preceding such transmissions, filed their names and
addresses with the Trustee for that purpose; and
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(3) except in the case of reports pursuant to Subsection
(b) of this Section, to each Holder of a Security whose name and
address is preserved at the time by the Trustee, as provided in
Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of
this Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with
the Commission and with the Company. The Company will notify the Trustee when
any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee, within 15 days after
the Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended, and shall otherwise comply with
Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest (including all Additional Amounts, if any) on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
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(2) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of time
or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the
Company into any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease 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 Person had been named as the Company herein, and thereafter, except
in the case of such lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities and any
coupons appertaining thereto (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such
covenants are
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expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect
to all or any series of the Securities (and, if such Event of Default
is applicable to less than all series of Securities, specifying the
series to which such Event of Default is applicable); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
adversely affected by such change in or elimination of such provision;
or
(6) to establish the form or terms of Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
other provisions as may be made shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such
supplemental indenture (acting as one class), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any
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of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon,
any Additional Amounts with respect thereto or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or
Additional Amounts with respect thereto is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to
provide with respect to any particular series the right to condition
the effectiveness of any supplemental indenture as to that series on
the consent of the Holders of a specified percentage of the aggregate
principal amount of Outstanding Securities of such series (which
provision may be made pursuant to Section 301 without the consent of
any Holder) or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent
of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008, or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series and any coupons appertaining
thereto so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series and any coupons appertaining thereto.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay the principal of (and
premium, if any), interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of the Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due and Additional Amounts payable with respect to on Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments, as are
evidenced thereby as they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered
Securities, the Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company will maintain (a) in the Borough of Manhattan, The City
of New York, an office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange for Registered Securities, where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (b)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts with
respect to Bearer Securities of that series); provided, however, that if the
Securities of that series are listed on the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (c) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any
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Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts with
respect to Bearer Securities of that series) at the office of any Paying Agent
for such series located outside the United States, and the Company hereby
appoints the Trustee as its office or agency to receive such presentations,
surrenders, notices and demands.
No payment of principal, premium or interest on, or Additional
Amounts with respect to, Bearer Securities shall be made at any office or
agency of the Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located
in the United States, nor shall any payments be made in respect of Bearer
Securities or coupons appertaining thereto pursuant to the presentation to the
Company or its designated Paying Agents within the United States; provided,
however, that if the Securities of a series are denominated and payable in
Dollars, payment of principal of and any premium and interest on any Bearer
Security (including any Additional Amounts payable on securities of such
series) shall be made at the office of the Company's Paying Agent in the
Borough of Manhattan, The City of New York, if (but only if) payment in Dollars
of the full amount of such principal, premium, interest, or Additional Amounts
as the case may be, at all offices or agencies outside the United States
maintained for the purpose by the Company in accordance with this Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities and any coupons appertaining thereto,
it will, on or before each due date of the principal of (and premium, if any)
or interest on or any Additional Amounts with respect to any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or
interest so becoming
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due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons appertaining thereto, the
Company will, on or before each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent
a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of that
series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of that series) in the
making of any payment of principal (and premium, if any) or interest
on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which sums were held by the Company
or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security of any series and remaining
unclaimed for three years after such principal (and premium, if any) or
interest has become due and payable shall, unless otherwise required by
mandatory provisions of applicable escheat, or abandoned or unclaimed property
law, be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
and coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the
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Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in the Borough of Manhattan,
The City of New York, notice that such money remains unclaimed and that, after
a date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent that Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or upon the income, profits or property of the Company or any
Subsidiary, and (b) all material lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof so long
as any Security is outstanding
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hereunder, an Officers' Certificate, stating that a review of the activities of
the Company during such year and of performance under this Indenture has been
made under the supervision of the signers thereof and whether or not to the
best of their knowledge the Company is in default in the fulfillment of any of
its obligations under this Indenture, and if the Company shall be in default,
specifying each such default known to them and the nature and status thereof.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1004 to 1006, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 301 (unless otherwise specified pursuant to Section 301) if before or
after the time for such compliance the Holders of a majority in principal
amount of the Outstanding Securities of all series affected by such omission
(acting as one class) shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 1009. Additional Amounts.
If the Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of,
any Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of
Additional Amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date of
payment of principal and any premium or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are United States Aliens without
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withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
securities or coupons and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
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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 Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 107 to Holder of Securities to be redeemed not less than 30 nor more
than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, are to be surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is
the case,
(7) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons appertaining thereto maturing
subsequent to the date fixed for redemption or the amount of any such
missing coupon or coupons will be deducted from the Redemption Price
or security or indemnity satisfactory to the Company, the Trustee and
any Paying Agent is furnished, and
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(8) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on such Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made.
A notice of redemption as contemplated by Section 107 need not
identify particular Registered Securities to be redeemed. Notice of redemption
of Securities to be redeemed at the election 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.
SECTION 1105. Deposit of Redemption Price.
On or before any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 1003) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, and any
Additional Amounts with respect to, all the Securities which are to be redeemed
on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be redeemed. Upon surrender of any
such Security for redemption in accordance with said notice, together with all
coupons appertaining thereto, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest (and any Additional Amounts) to the
Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
appertaining thereto for such interest; and provided, further, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons appertaining thereto maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons
appertaining thereto, or the surrender of such missing coupon or coupons
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appertaining thereto may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest (and any Additional Amounts with respect
thereto) represented by coupons appertaining thereto shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons appertaining
thereto.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate
prescribed therefor in the Security or, in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or
the Trustee so requires, due endorsement by, or 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), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series and Stated Maturity, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to
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reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (a) may deliver Outstanding Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities
of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided, however, that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivery of or by crediting
Securities of that series pursuant to Section 1202 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security or coupon, by his acceptance thereof, whether upon original issue or
upon transfer or assignment, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth, the payment of
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the principal of (and premium, if any) and interest on, and any Additional
Amounts with respect to, each and all of the Securities and the payment of any
coupon is hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness.
SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of any Proceeding, the holders of Senior
Indebtedness shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Indebtedness, or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, before the Holders of the
Securities or coupons appertaining thereto are entitled to receive any
Securities Payment (other than a Securities Payment in the form of Permitted
Junior Securities), and to that end the holders of Senior Indebtedness shall be
entitled to receive, for application to the payment thereof, any Securities
Payment (other than any Securities Payment in the form of Permitted Junior
Securities), which may be payable or deliverable in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
Securities Payment (other than any Securities Payment in the form of Permitted
Junior Securities) before all Senior Indebtedness is paid in full or payment
thereof is provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, and if the Trustee or such
Holder, as the case may be, shall, at or prior to the time of such Securities
Payment have actual knowledge of such fact, then and in each such event, such
Securities Payment shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets as an entirety, as the case may be, shall,
as a part of such consolidation, merger, conveyance or transfer, comply with
the conditions set forth in Article Eight.
SECTION 1303. No Payment When Designated Senior Indebtedness in Default.
In the event that any Payment Event of Default shall have
occurred and be continuing, no Securities Payment (other than a Securities
Payment in the form of Permitted Junior Securities) shall be made unless and
until such Payment Event of Default shall have been
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cured or waived or shall have ceased to exist or all amounts then due and
payable in respect of Designated Senior Indebtedness shall have been paid in
full, or provision shall have been made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Designated
Senior Indebtedness.
In the event that any Non-Payment Event of Default shall have
occurred with respect to any Designated Senior Indebtedness and be continuing,
then, upon the receipt by the Trustee and the Company of written notice of such
Non-Payment Event of Default from the trustee or representative for, or holders
of, at least a majority in principal amount of such Designated Senior
Indebtedness, no Securities Payment (other than a Securities Payment in the
form of Permitted Junior Securities) shall be made during the period (the
"Payment Blockage Period") commencing on the date of receipt of such written
notice and ending on the earlier of (a) the date on which such Non-Payment
Event of Default shall have been cured or waived or shall have ceased to exist
or any acceleration of the Designated Senior Indebtedness to which such
Non-Payment Event of Default relates shall have been rescinded or annulled or
such Designated Senior Indebtedness shall have been discharged and (b) the
176th day after the date of such receipt of such written notice. During any
360-day period the aggregate of all Payment Blockage Periods shall not exceed
176 days and there shall be a period of at least 184 consecutive days in each
360-day period when no Payment Blockage Period is in effect. For all purposes
of this paragraph, no Non-Payment Event of Default that existed or was
continuing on the date of commencement of any Payment Blockage Period shall be,
or be made, the basis for the commencement of a subsequent Payment Blockage
Period by a trustee or representative for, or holders of, Designated Senior
Indebtedness unless such Payment Event of Default or Non-Payment Event of
Default shall have been cured for a period of not less than 90 consecutive
days.
In the event that, notwithstanding the foregoing, the Company
shall make any Securities Payment to the Trustee or the Holder of any Security
at a time when such Securities Payment was prohibited by the foregoing
provisions of this Section, and if, at or prior to the time of such Securities
Payment, the Trustee or such Holder, as the case may be, had actual knowledge
of such fact, then and in such event such Securities Payment shall be paid over
and delivered forthwith to the Company.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 1302 would be applicable.
SECTION 1304. Payment Permitted if No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any
time except during the pendency of any Proceeding referred to in Section 1302
or under the conditions described in Section 1303, from making Securities
Payments, or (b) the application by the Trustee of any money deposited with it
hereunder to Securities Payments or the retention of such Securities Payment by
the Holders,
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if, at the time of such application by the Trustee, it did not have actual
knowledge that such Securities Payment would have been prohibited by the
provisions of this Article.
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due and to
become due on or in respect of Senior Indebtedness, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Indebtedness, the Holders of the Securities or coupons
appertaining thereto shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of and
premium, if any, and interest on, and any Additional Amounts with respect to,
the Securities or coupons appertaining thereto shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or coupons appertaining thereto or the Trustee would
be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or coupons appertaining thereto or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities or coupons appertaining
thereto, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities or
coupons appertaining thereto on the one hand and the holders of Senior
Indebtedness on the other hand. Nothing contained in this Article or elsewhere
in this Indenture or in the Securities or coupons appertaining thereto is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities or coupons
appertaining thereto, the obligation of the Company, which is absolute and
unconditional (and which, subject to the rights under this Article of the
holders of Senior Indebtedness, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities or
coupons appertaining thereto the principal of and premium, if any, and interest
on, and any Additional Amounts with respect to, the Securities or coupons
appertaining thereto as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities or coupons appertaining thereto and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the occurrence of an Event of Default or prevent the Trustee or the
Holder of any Security or coupon from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
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SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security or coupon by his acceptance thereof,
whether upon original issue or upon transfer or assignment, authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders of the Securities and the
holders of Senior Indebtedness, the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable bankruptcy law of the Company (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
filing of a claim for the unpaid balance of such Holder's Securities in the
form required in such proceedings and the causing of such claim to be approved.
If the Trustee does not file a claim or proof of debt in the form required in
such proceedings prior to 10 days before the expiration of the time to file
such claims of proofs, then the holders of Senior Indebtedness, jointly, or
their representative shall have the right to file an appropriate claim for and
on behalf of the Holders. Nothing contained herein shall be construed to
authorize the Trustee or the holders of Senior Indebtedness to authorize or
consent to or to accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder or to authorize the Trustee or the holders of
Senior Indebtedness to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 1308. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
or coupons appertaining thereto and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
Holders of the Securities or coupons appertaining thereto to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness and settle or compromise Senior Indebtedness
(which, to the extent so settled and compromised, shall be deemed to have been
paid in full for all purposes hereof); (d) apply any amounts received to any
liability of the Company owing to holders of
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Senior Indebtedness; and (e) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 1309. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any default or event of default with respect to any Senior Indebtedness or of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities or coupons appertaining thereto.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee
in respect of the Securities or coupons appertaining thereto, unless and until
the Trustee shall have received written notice thereof from the Company or a
holder of Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least five Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of and
premium, if any, or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within five Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of
any Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities or coupons appertaining thereto shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which any Proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent
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or other Person making such payment or distribution, delivered to the Trustee
or to the Holders of Securities or coupons appertaining thereto, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this
Article.
SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness.
SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1313. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1312 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1314. Application by Trustee of Assets Deposited with It.
All money and U.S. Government Obligations deposited in trust
with the Trustee pursuant to and in accordance with Section 401 shall be for
the sole benefit of the Holders and shall not be subject to this Article.
Otherwise, any deposit of assets by the Company with the Trustee or any Paying
Agent (whether or not in trust) for the payment of principal of (or premium, if
any) or interest on, or any Additional Amounts with respect to, any Securities
shall be subject to the provisions of this Article.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders
of Securities of any series for any purpose specified in Section 1401, to be
held at such time and at such place in Dallas, Texas, in the Borough of
Manhattan, the City of New York, or in London, as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
107, not less than 20 nor more than 180 days prior to the date fixed for the
meeting (or, in the case of a meeting of Holders with respect to Securities of
a series all or part of which are represented by a Book-Entry Security, not
less than 20 nor more than 40 days).
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for any
such series to call a meeting of the Holders of Securities of such series for
any purpose specified in Section 1401, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first publication of the notice of such meeting
within 30 days after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the case
may be, may determine the time and the place in Dallas, Texas, in the Borough
of Manhattan, the City of New York, or in London, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (a) a Holder of one or more Outstanding
Securities of such series, or (b) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders of Securities of
any series shall be the
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<PAGE> 89
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for
a meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly that
Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series shall constitute a quorum. Notwithstanding the
foregoing, no meeting of Holders with respect to Securities of any series which
is represented in whole or in part by a Book-Entry Security shall be adjourned
to a date more than 90 days after the date on which notice of such meeting was
originally given in accordance with Section 1402 unless the Trustee shall send
out a new notice of meeting.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the coupons appertaining thereto,
whether or not present or represented at the meeting.
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<PAGE> 90
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the
manner specified in Section 105 and the appointment of any proxy shall be
proved in the manner specified in Section 105 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 105 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 105 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series and each proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented at
the meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
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showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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<PAGE> 92
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
SNYDER OIL CORPORATION
By:/s James H. Shonsey
--------------------------------------------------------
James H. Shonsey
Vice President - Finance
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By:/s John G. Jones
---------------------------------------------------------
Name: John G. Jones
---------------------------------------------------
Title: Senior Trust Officer
--------------------------------------------------
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<PAGE> 93
STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
On the ____ day of _______________, 19__, before me personally
came _________________________, to me known, who, being by me duly sworn, did
depose and say that he is _______________________________ of SNYDER OIL
CORPORATION, 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.
_______________________________________
Notary Public in Dallas County for the
State of Texas
My Commission Expires _________________
[NOTARIAL SEAL]
STATE OF TEXAS )
) ss:
COUNTY OF DALLAS )
On the ____ day of _______________, 19__, before me personally
came ____________________________, to me known, who, being by me duly sworn,
did depose and say that he is _________________________________ of
_____________________________ _______________________, 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.
_______________________________________
Notary Public in Dallas County for the
State of Texas
My Commission Expires ___________________
[NOTARIAL SEAL]
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<PAGE> 94
EXHIBIT A
FORM OF CERTIFICATE TO BE
GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF
INTEREST IN A GLOBAL SECURITY
SNYDER OIL CORPORATION
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities that are held by the
undersigned or held by you for the account of the undersigned (a) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States persons"), (b) are owned by United States person(s) that (i)
are foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (ii) acquired Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (i) or (ii), each such United States financial
institution hereby certifies, on its own behalf or through its agent that it
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986 as amended, and the regulations thereunder), or
(c) are owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities
is a United States or foreign financial institution described in clause (c)
above (whether or not also described in clause (a) or (b)) this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, (a) in
the case of debt securities, the Securities are beneficially owned by (i)
non-U.S. person(s) or (ii) U.S. person(s) who purchased the Securities in
transactions which did not require registration under the Act; or (b) in the
case of equity securities, the Securities are owned by (i) non-U.S. person(s)
(and such person(s) are not acquiring the Securities for the account or benefit
of U.S. person(s)) or (ii) U.S. person(s) who purchased the Securities in a
transaction which did not require registration under the Act. If this
certification is being delivered in connection with the exercise of warrants
pursuant to Section 230.902(m) of Regulation S under the Act, then this is
further to certify that, except as set forth
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<PAGE> 95
below, the Securities are being exercised by and on behalf of non-U.S.
person(s). As used in this paragraph the term "U.S. person" has the meaning
given to it by Regulation S under the Act.
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
$______________ of such interest in the above Securities in respect of which we
are not able to certify and as to which we understand exchange and delivery of
definitive Securities (or, if relevant, exercise of any rights or collection of
any interest) cannot be made until we do so certify.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification to any interested party in such proceedings.
*Dated: __________________, 199__
NAME OF PERSON MAKING CERTIFICATION
By:_______________________________
As, or as Agent for, the
beneficial owner(s) of the
Securities to which this
Certificate relates
By:_______________________________
As, or as Agent for, the
financial institution (if any)
through which a United States
Person acquired the Securities
to which this Certificate relates
__________________________________
*To be dated no earlier than the Certification Date.
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<PAGE> 96
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY THE EURO-CLEAR OPERATOR OR CEDEL
SNYDER OIL CORPORATION
[TITLE OF SECURITIES]
(THE "SECURITIES")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Indenture, dated as of
___________________, 199___ between Snyder Oil Corporation and
______________________________________, as of the date hereof, [ ]
principal amount of the above captioned Securities (a) is owned by persons that
are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source ("United States
persons"), (b) is owned by United States persons that (i) are foreign branches
of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing
for their own account or for resale, or (ii) acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (i) or (ii), each such United States financial institution
has certified, on its own behalf or through its agent, that it will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (c) is owned by
United States or foreign financial institutions for purposes of resale during
the restricted period (as defined in U.S. Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or
foreign financial institutions described in clause (c) above (whether or not
also described in clause (a) or (b)) have certified that they have not acquired
the Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to the principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (a) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or collection of
any interest) any portion of the temporary global
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<PAGE> 97
Security excepted in such certifications and (b) that as of the date hereof we
have not received any notification from any of our Member Organizations to the
effect that the statements made by such Member Organizations with respect to
any portion of the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain securities laws of
the United States. In connection therewith, if administrative or legal
proceedings are commenced or threatened in connection with which this
certification is or would be relevant, we irrevocably authorize you to produce
this certification or a copy hereof to any interested party in such
proceedings.
Dated:______________, 199__
(dated the Exchange Date or the
Interest Payment Date)
_______________________________________
as operator of the Euro-clear System
or
[CEDEL S.A.]
By ____________________________________
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<PAGE> 1
EXHIBIT 4.2
===============================================================================
SNYDER OIL CORPORATION
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
-----------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of June 10, 1997
to
Indenture dated as of June 10, 1997
-----------------
===============================================================================
<PAGE> 2
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 10, 1997, is between
SNYDER OIL CORPORATION, a Delaware corporation (hereinafter called the
"Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association company (hereinafter called the "Trustee").
RECITALS
WHEREAS, the Company has executed and delivered to the Trustee an
Indenture, dated as of June 10, 1997 (the "Original Indenture" and as
supplemented by this First Supplemental Indenture, the "Indenture"), providing
for the issuance and sale by the Company from time to time of its debt
securities (the "Securities"), issuable in one or more series;
WHEREAS, all capitalized terms used herein which are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture unless otherwise defined herein;
WHEREAS, Section 901(5) of the Original Indenture permits the execution
of supplemental indentures to change or eliminate any of the provisions of the
Original Indenture, provided that such change or elimination shall become
effective only when there is no Security Outstanding prior to the execution of
such supplemental indenture which is adversely affected by such change in or
elimination of such provision; and
WHEREAS, there is currently no Security Outstanding prior to the
execution of the First Supplemental Indenture.
NOW, THEREFORE, the Company and the Trustee hereby agree that the
following provisions supplement and/or replace the Original Indenture:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions. The following definitions are added to, or
substituted in lieu of definitions contained in, Section 101 of the Indenture:
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such Sale and Leaseback Transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended).
<PAGE> 3
"Bank Credit Facility" means that certain Fifth Restated Credit
Agreement, as amended among the Company, NationsBank of Texas, N.A., as agent,
and the other banks named therein, as the same may be amended, modified,
supplemented, extended, restated, replaced, renewed or refinanced from time to
time.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents in the equity
interests (however designated) in such Person, and any rights (other than debt
securities convertible into an equity interest), warrants or options
exercisable for, exchangeable for or convertible into such an equity interest
in such Person.
"Capitalized Lease Obligation" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
Property (whether real, personal or mixed) that is required to be classified
and accounted for as a capital lease obligation under GAAP, and, for the
purpose of this Indenture, the amount of such obligation at any date shall be
the capitalized amount thereof at such date, determined in accordance with
GAAP.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Fair Market Value" means the fair market value of a Property (including
shares of Capital Stock) as determined by the Board of Directors of the Company
and evidenced by a Board Resolution in good faith, which determination shall be
conclusive for purposes of this Indenture; provided, however, that unless
otherwise specified herein, the Board of Directors shall be under no obligation
to obtain any valuation or assessment from any investment banker, appraiser or
other third party.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be
approved by a significant segment of the accounting profession of the United
States of America, which are effective on the date of this First Supplemental
Indenture.
"Indebtedness" means, with respect to any Person, without duplication,
(i) all liabilities of such Person for borrowed money or for the deferred
purchase price of Property or services (excluding any trade accounts payable
and other accrued current liabilities incurred in the ordinary course of
business), and all liabilities of such Person incurred in connection with any
letters of credit, bankers' acceptances or other similar credit transactions or
any agreement to purchase, redeem, exchange, convert or otherwise acquire for
value any Capital Stock of such Person, or any warrants, rights or options to
acquire such Capital Stock outstanding on the date of this First Supplemental
Indenture or thereafter, if, and to the extent, any of the foregoing would
appear as a liability upon a balance sheet of such Person prepared in
accordance with GAAP, (ii) all obligations of such Person
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<PAGE> 4
evidenced by bonds, notes, debentures or other similar instruments, if, and to
the extent, any of the foregoing would appear as a liability upon a balance
sheet of such Person prepared in accordance with GAAP, (iii) all Indebtedness
of such Person created or arising under any conditional sale or other title
retention agreement with respect to Property acquired by such Person (even if
the rights and remedies of the seller or lender under such agreement in the
event of default are limited to repossession or sale of such Property), but
excluding trade accounts payable arising in the ordinary course of business,
(iv) all Capitalized Lease Obligations of such Person, (v) the Attributable
Indebtedness (in excess of any Capitalized Lease Obligations) related to any
Sale and Leaseback Transaction of such Person, (vi) all Indebtedness referred
to in the preceding clauses of other Persons and all dividends of other
Persons, the payment of which is secured by (or for which the holder of such
Indebtedness has an existing right to be secured by) any Lien upon Property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such Property or the amount of the obligation so
secured), (vii) all guarantees by such Person of Indebtedness referred to in
this definition (including, with respect to any Production Payment), any
warranties or guaranties of production or payment by such Person with respect
to a Production Payment but excluding other contractual obligations of such
Person with respect to such Production Payment, (viii) all Redeemable Capital
Stock of such Person valued at the greater of its voluntary or involuntary
maximum fixed repurchase price plus accrued dividends, (ix) all obligations of
such Person under or in respect of currency exchange contracts, oil and natural
gas price hedging arrangements and Interest Rate Protection Obligations (x)
Preferred Stock of any Restricted Subsidiary of the Company (other than
Preferred Stock held by the Company or any of its Restricted Subsidiaries) and
(xi) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of such Person of the types referred to in clauses
(i) through (x) above. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by the Fair Market
Value of such Redeemable Capital Stock, such Fair Market Value shall be
determined in good faith by the board of directors of the issuer of such
Redeemable Capital Stock; provided, however, that if such Redeemable Capital
Stock is not at the date of determination permitted or required to be
repurchased, the "maximum fixed repurchase price" shall be the book value of
such Redeemable Capital Stock. Subject to clause (vii) of the first sentence
of this definition, neither Dollar-Dominated Production Payments nor Volumetric
Production Payments shall be deemed to be Indebtedness.
"Insolvency or Liquidation Proceeding" mean, with respect to any Person,
(a) an insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or similar case or proceeding in connection
therewith, relative to such Person or its creditors, as such or its assets or
(b) any liquidation, dissolution or other winding-up proceeding of such Person,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy or (c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of such Person.
-4-
<PAGE> 5
"Lien" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance or similar agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation,
any agreement to give or grant a Lien or any lease, conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing) upon or with respect to any Property of any kind. A Person
shall be deemed to own subject to a Lien any Property which such Person has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention agreement.
"Pari Passu Indebtedness" means any Indebtedness of the Company that is
pari passu in right of payment to the Securities.
"Permitted Junior Securities" means any equity securities or
subordinated debt securities of the Company or any successor obligor with
respect to the Senior Indebtedness provided for by a plan of reorganization or
readjustment that, in the case of any such subordinated debt securities, are
subordinated in right of payment to all Senior Indebtedness that may at the
time be outstanding to substantially the same degree as, or to a greater extent
than, the Securities are so subordinated as provided in this Indenture.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Production Payments" means, collectively, Dollar-Denominated Production
Payments and Volumetric Production Payments.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock in any
other Person.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the term of any security into which it is convertible or exchangeable
or by contract or otherwise, is, or upon the happening of an event or passage
of time would be, required to be redeemed prior to the final Stated Maturity of
the Securities or is redeemable at the option of the holder thereof at any time
prior to such final Stated Maturity, or is convertible into or exchangeable
for debt securities at any time prior to such final Stated Maturity.
"Sale and Leaseback Transaction" means, with respect to any Person, any
direct or indirect arrangement pursuant to which properties or assets are sold
or transferred by such Person or a Subsidiary of such Person and are thereafter
leased back from the purchaser or transferee thereof by such Person or one of
its Subsidiaries.
-5-
<PAGE> 6
"Senior Indebtedness" means the principal of (and premium, if any, on)
and interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any bankruptcy law) and other amounts due
on or in connection with (including any fees, premiums, expenses, including
costs of collection, and indemnities) any Indebtedness of the Company, whether
outstanding on the date of this First Supplemental Indenture or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the, same is outstanding expressly provides that such Indebtedness will
be pari passu with or expressly subordinated in right of payment to the
Securities. Notwithstanding the foregoing, "Senior Indebtedness" will not
include (i) Indebtedness evidenced by the Securities; (ii) Indebtedness of the
Company that is Pari Passu Indebtedness or is expressly subordinated in right
of payment to any other Indebtedness of the Company, (iii) Indebtedness that is
represented by Redeemable Capital Stock, (iv) Indebtedness of the Company to
any Subsidiary of the Company or any other Affiliate of the Company or any
subsidiary of such Affiliate and (v) Indebtedness which when incurred and
without regard to any election under Section 1111(b) of the Federal Bankruptcy
Code is without recourse to the Company.
"Specified Senior Indebtedness" means (i) all Senior Indebtedness of the
Company in respect of the Bank Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings, or
replacements (each, for purposes of this definition, a "refinancing") thereof
by the Company, including any successive refinancings thereof by the Company
and (ii) any other Senior Indebtedness and any refinancings thereof by the
Company having a principal amount of at least $10,000,000 as of the date of
determination and provided that the agreements, indentures or other instrument
evidencing such Senior Indebtedness or pursuant to which such Senior
Indebtedness was issued specifically designates such Senior Indebtedness as
"Specified Senior Indebtedness" for purposes of this First Supplemental
Indenture.
"Subsidiary Guarantor" means any subsidiary guaranteeing a series of
Securities in accordance with the terms specified in an indenture supplemental
hereto pursuant to which Securities may be issued in accordance with Section
301.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
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ARTICLE II
THE SECURITIES
Section 2.1 Terms of Series -Defeasance and Discharge. Paragraph 16
of Section 301 of the Indenture is hereby deleted and replaced with the
following:
(16) any additional conditions to discharge pursuant to Section 402 or
404;
Section 2.2 Terms of Series -Subsidiary Guarantors. A new paragraph
(19) is added to Section 301 of the Indenture as follows:
(19) whether the Securities of the series are to be guaranteed by
Subsidiary Guarantors, and the terms of such guarantees.
ARTICLE III
DEFEASANCE AND COVENANT DEFEASANCE
Section 3.1 Defeasance and Covenant Defeasance. The following
replaces Article Four of the Indenture:
SECTION 401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to Securities of a particular series, elect to have either Section 402
or Section 403 hereof be applied to all Outstanding Securities of a particular
series, upon compliance with the conditions set forth below in this Article
Four.
SECTION 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 hereof of the option
applicable to this Section 402, the Company and the Subsidiary Guarantors, if
any shall be deemed to have been discharged from their respective obligations
with respect to all Outstanding Securities of a particular series on the date
the conditions set forth in Section 404 hereof are satisfied (hereinafter,
"legal defeasance"). For this purpose, such legal defeasance means that the
Company and any Subsidiary Guarantor shall be deemed (i) to have paid and
discharged their respective obligations under the Outstanding Securities;
provided, however, that the Securities of such series shall continue to be
deemed to be "Outstanding" for purposes of Section 405 hereof and the other
Sections of this Indenture referred to in clauses (a) and (b) below, and (ii)
to have satisfied all their other obligations under such Securities of such
series and this Indenture insofar as such Securities of such series are
concerned (and the Trustee, at the expense and direction of the Company, shall
execute proper
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instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund described in Section 404 hereof and as more fully set forth in such
Section, payments in respect of the principal of (and premium if any, on) and
interest on such Securities of such series when such payments are due (or at
such time as the Securities of such series would be subject to redemption at
the option of the Company in accordance with this Indenture), (b) the
respective obligations of the Company and any Subsidiary Guarantor under
Sections 303, 304, 305, 306, 307, 508, 515, 607, 610, 611, 1002, 1003, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder, and (d)
the obligations of the Company and any Subsidiary Guarantor under this Article
Four. Subject to compliance with this Article Four, the Company may exercise
its option under this Section 402 notwithstanding the prior exercise of its
option under Section 403 hereof with respect to the Securities of such series.
SECTION 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 hereof of the option
applicable to this Section 403, the Company and any Subsidiary Guarantor shall
be released from their respective obligations under any covenant contained in
Article Eight, and in any other covenant specified in a supplemental indenture
hereto hereof with respect to the Outstanding Securities of a particular series
on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Securities of such series shall
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of a
particular series, the Company and any Subsidiary Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and such omission to comply, shall not constitute a Default or
an Event of Default for failing to comply with the terms, agreements and
conditions contained in this Indenture, but, except as specified above, the
remainder of this Indenture and such Securities of such series and any
Securities of any other series shall be unaffected thereby.
SECTION 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
402 or Section 403 hereof to the Outstanding Securities of a particular series:
(i) The Company or any Subsidiary Guarantor shall irrevocably have
deposited or caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 609 hereof who shall agree to comply
with the provisions of this Article Four applicable to it) 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 of such series, (a) cash in U.S.
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Dollars in an amount, or (b) 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 (c) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium, if any, on) and
interest on the Outstanding Securities of such series on the Stated Maturity
thereof (or Redemption Date, if applicable), provided that the Trustee shall
have been irrevocably instructed in writing by the Company to apply such money
or the proceeds of such U.S. Government Obligations to said payment with
respect to the Securities of such series. If the Securities of a particular
series are redeemable before their Stated Maturity in accordance with their
terms, the Company may give, before such a deposit, to the Trustee, in
accordance with Section 1102 hereof, a notice of its election to redeem all of
the Outstanding Securities at a future date in accordance with Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given affect in applying the foregoing. For this purpose,
"U.S. Government Obligations" means securities that are (x) direct obligations
of the United States of America for the timely 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 timely payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act 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 amount of
the holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(ii) No Default or Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit or, insofar
as Sections 501(5) and 501(6) are concerned, at any time during the period
ending on the 91st day after the date of such deposit.
(iii) Such legal defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest under this Indenture or the Trust
Indenture Act with respect to any securities of the Company or any Subsidiary
Guarantor.
(iv) Such legal defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under any other material
agreement or instrument to which the Company or any Subsidiary Guarantor is a
party or by which it is bound, as evidenced to the Trustee in an Officers'
Certificate delivered to the Trustee concurrently with such deposit.
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(v) In the case of an election under Section 402 hereof the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (a) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (b) since the date of this Indenture there has been a
change in the applicable federal income tax laws, in either case providing that
the Holders of the Outstanding Securities of the particular series will not
recognize income, gain or loss for federal income tax purposes as a result of
such legal defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such legal defeasance had not occurred (it being understood that (1) such
Opinion of Counsel shall also state that such ruling or applicable law is
consistent with the conclusions reached in such Opinion of Counsel and (2) the
Trustee shall be under no obligation to investigate the basis of correctness of
such ruling).
(vi) In the case of an election under Section 403 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders or the Outstanding Securities of the particular series will not
recognize income or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such covenant defeasance had not occurred.
(vii) The Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of such
series pursuant to this Section 404.
(viii) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, which, taken together, state that all
conditions precedent provided for relating to either the legal defeasance under
Section 402 hereof or the covenant defeasance under Section 403 (as the case
may be) have been complied with.
SECTION 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003 hereof,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 405, the "Trustee") pursuant to Section 404 hereof in
respect of the Outstanding Securities of a particular series 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 premium, if any) 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. Governmental Obligations
deposited pursuant to Section 404 hereof or the principal and interest received
in respect thereof other than any such tax,
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fee or other charge which by law is for the account of the Holders of the
Outstanding Securities of a particular series.
Anything in this Article Four to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 404 hereof which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or
covenant defeasance, as applicable, in accordance with this Article Four.
SECTION 406. Reinstatement.
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 405 hereof by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's and any Subsidiary Guarantors' obligations
under this Indenture and the Securities of a particular series shall be revived
and reinstated as though no deposit had occurred pursuant to Section 402 or 403
hereof, as the case may be, until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 405 hereof;
provided, however, that if the Company or any Subsidiary Guarantor makes any
payment of principal of (or premium if any, on) or interest on any Security of
a particular series following the reinstatement of its obligations, the Company
or such Subsidiary Guarantor shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE IV
SUBORDINATION OF SECURITIES
Section 4.1 Subordination. The following replaces Article Thirteen of
the Indenture:
SECTION 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any, on)
and interest on, and any Additional Amounts with respect to, each and all of
the Securities are hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full of all Senior
Indebtedness, whether outstanding on the date of the issuance of Securities of
a particular series or thereafter created, incurred. assumed or guaranteed;
provided, however, that the Securities, the Indebtedness represented thereby
and the payment of the principal
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of (and premium, if any, on) and interest on the Securities in all respects
shall rank equally with, or prior to, all existing and future unsecured
Indebtedness (including, without limitation, Indebtedness) of the Company that
is subordinated to Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder
and any one or more of them may enforce such provisions.
SECTION 1302. Payment over of Proceeds upon Dissolution, etc.
Upon any distribution of Properties of the Company or payment on behalf
of the Company with respect to the Securities in the event of any Insolvency or
Liquidation Proceeding with respect to the Company:
(i) the holders of Senior Indebtedness shall be entitled to receive
payment in full of such Senior Indebtedness, or provision must be made for such
payment, before the Holders of the Securities are entitled to receive any
direct or indirect payment or distribution of any kind or character, whether in
cash, property or securities (other than Permitted Junior Securities or from
any defeasance trust created pursuant to Article Four hereto) on account of
principal of (or premium, if any, on) or interest on the Securities or on
account of the purchase or redemption or other acquisition of Securities; and
(ii) any direct or indirect payment or distribution of Properties of
the Company of any kind or character, whether in cash, property or securities
(other than a payment or distribution in the form of Permitted Junior
Securities or from any defeasance trust created pursuant to Article Four
hereto), by set-off or otherwise, to which the Holders or the Trustee, on
behalf of the Holders, would be entitled but for the provisions of this Article
shall be paid by the Company or by any liquidating trustee or agent or other
Person making such payment or distribution whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate.
amounts remaining unpaid on account of the Senior Indebtedness held or
represented by each, to the extent necessary to make payment in full of all
Senior Indebtedness after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(iii) in the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of Properties of the Company of any kind or character,
whether in cash, property or securities, by set-off or otherwise, in respect of
principal of (and premium, if any, on) or interest on the Securities before all
Senior Indebtedness is paid or provided for in full, then and in such event
such payment or distribution (other than a payment or distribution in the form
of Permitted Junior Securities or from any
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defeasance trust created pursuant to Article Four hereto) shall be paid over or
delivered forthwith to the holders of all Senior Indebtedness remaining unpaid,
or their representatives, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposition of all
or substantially all its Properties to another Person or group of Affiliated
Persons pursuant to, and in compliance with, the terms and conditions set forth
in Article Eight hereof shall not be deemed an Insolvency or Liquidation
Proceeding (requiring the repayment of all Senior Indebtedness in full as a
prerequisite to any payments being made to the Holders) for the purposes of
this Section.
SECTION 1303. Suspension of Payment When Senior Indebtedness in Default.
(i) Unless Section 1302 hereof shall be applicable, upon (a) the
occurrence of a Payment Event of Default and (b) receipt by the Trustee of
written notice of such occurrence, then no payment or distribution of any
Properties of the Company of any kind or character (other than Permitted Junior
Securities or from any defeasance trust created pursuant to Article Four
hereto) shall be made by the Company on account of principal of (or premium, if
any, on) or interest on the Securities or on account of the purchase or
redemption or other acquisition of Securities unless and until such Payment
Event of Default shall have been cured or waived in writing or shall have
ceased to exist or such Senior Indebtedness shall have been paid in full or
otherwise discharged, after which the Company shall resume making any and all
required payments in respect of the Securities, including any missed payments.
(ii) Unless Section 1302 hereof shall be applicable, upon (a) the
occurrence of a Nonpayment Event of Default and (b) receipt by the Trustee and
the Company of written notice of such occurrence from one or more of the
holders of Specified Senior Indebtedness (or their representative), then no
payment or distribution of any Properties of the Company of any kind or
character (other than Permitted Junior Securities or from any defeasance trust
created pursuant to Article Four hereto) shall be made by the Company on
account of any principal of (or premium, if any, on) or interest on the
Securities or on account of the purchase or redemption or other acquisition of
Securities for the period specified below (the "Payment Blockage Period"). The
Payment Blockage Period will commence upon the earlier of the dates of receipt
by the Trustee or the Company of such notice (the "Payment Blockage Notice")
from one or more of the holders of Specified Senior Indebtedness (or their
representative) and shall end on the earliest of (a) 179 days thereafter, (b)
the date, as set forth in a written notice from the holders of the Specified
Senior Indebtedness (or their representative) to the Company or the Trustee, on
which such Non-payment Event of Default is cured, waived in writing or ceases
to exist or such Specified Senior Indebtedness is discharged or (c) the date on
which such Payment Blockage Period shall have been terminated by written notice
to the Company or the Trustee from one or more of the holders (or their
representative) initiating such Payment Blockage Period, after which the
Company will resume
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(unless otherwise prohibited pursuant to the immediately preceding paragraph)
making any and all required payments in respect of the Securities, including
any missed payments. In any event, not more than one Payment Blockage Period
may be commenced during any period of 360 consecutive days. No Non-payment
Event of Default that existed or was continuing on the date of delivery of any
Payment Blockage Notice to the Trustee will be, or can be, made the basis for
the commencement of a subsequent Payment Blockage Period.
(iii) In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section 1303, then and in such event such
payment shall be paid over and delivered forthwith to the Company. In the
event that the Company shall make any payment in respect of the Securities to
the Trustee and the Trustee shall receive written notice of a Payment Event of
Default or a Non-payment Event of Default from one or more of the holders of
Specified Senior Indebtedness (or their representative) prior to making any
payment to Holders in respect of the Securities and prior to 11:00 a.m.,
Eastern time, on the date which is two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose, such
payments shall be paid over by the Trustee and delivered forthwith to the
Company.
SECTION 1304. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any Insolvency or Liquidation Proceeding referred to in Section
1302 hereof or under the conditions described in Section 1303 hereof, from
making payments at any time of principal of (and premium, if any, on) or
interest on the Securities.
SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness.
After the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness to substantially the same extent as the Securities are so
subordinated and which is entitled to like rights of subrogation as a result of
the payments made to the holders of Senior Indebtedness) to the rights of the
holders of Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For purposes of such
subrogation, no payment or distributions to the holders of Senior Indebtedness
by or on behalf of the Company or by or on behalf of the Holders by virtue of
this Article which otherwise would have been made to the Holders shall, as
between the Company, its creditors other than holders of Senior Indebtedness,
and the Holders of the Securities, be decreed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
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SECTION 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are, and are intended solely, for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities
is intended to or shall (i) impair, as between the Company and the Holders of
the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any, on) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or (ii) affect the
relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness, or
(iii) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness.
SECTION 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee as his attorney-in-fact for any and all such purposes,
including, in the event of any Insolvency or Liquidation Proceeding with
respect to the Company, the immediate filing of a claim for the unpaid balance
of his Securities pursuant to this Indenture in the form required in said
proceedings and the causing of said claim to be approved.
SECTION 1308. No Waiver of Subordination Provision.
(i) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and
covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
(ii) Without in any way limiting the generally of paragraph (i) of
this Section, the holders of any Senior Indebtedness, in accordance with the
terms of the instrument or agreement evidencing their Senior Indebtedness, may,
at any time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Securities, without incurring responsibility to
the Holders of the Securities and without impairing or releasing the
subordination or other benefits provided in this Article, or the obligations
hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (a) change the manner,
place or terms of payment or extend the time of payment of, or renew, exchange,
amend, increase or alter, Senior Indebtedness or the terms of any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding or any liability of any obligor thereon (unless such change,
extension, amendment, increase or other alteration results in such Indebtedness
no longer being
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Senior Indebtedness as defined in this Indenture), (b) sell, exchange, release
or otherwise deal with any Property pledged, mortgaged or otherwise securing
Senior Indebtedness, (c) settle or compromise any Senior Indebtedness or any
liability of any obligor thereon or release any Person liable in any manner for
the collection of Senior Indebtedness, and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1309. Notice to Trustee.
(i) The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment to
or by the Trustee in respect of the Securities. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from
the Company or one or more of the holders of Senior Indebtedness (or their
representative), with respect to a Payment Default, or one or more of the
holders of Specified Senior Indebtedness (or their representatives) with
respect to a Non-payment Event of Default, or from any trustee, fiduciary or
agent therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled in
all respects to assume that no such facts exist; provided, however, that, if
the Trustee shall not have received the notice provided for in this Section
prior to 11:00 a.m., Eastern time, on the date which is two Business Days prior
to the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any, on) or interest on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power
and authority to receive such money and to apply the same to the purpose for
which such money was received and shall not be affected by any notice to the
contrary which may be received by it on or after 11:00 a.m. Eastern time two
Business Days prior to such payment date.
(ii) Subject to TIA Sections 315(a) through 315(d), the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee,
fiduciary or agent therefor) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee, fiduciary or agent therefor). In
the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee or the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
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SECTION 1310. Reliance of Judicial Order or Certificate of Liquidating Agent
Bank.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to TIA Sections 315(a) through 315(d), and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such Insolvency
or Liquidation Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 1311. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness, which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607 hereof.
SECTION 1312. Article Applicable to Paying Agents.
In case at any time a Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1311 hereof shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1313. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Five hereof or to pursue any rights or
remedies hereunder or under applicable law, except as provided in Article Five
hereof.
SECTION 1314. Trust Money Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments from
cash or the proceeds of U.S. Government Obligations held in trust under Article
Four hereof by the Trustee (or
-17-
<PAGE> 18
other qualifying trustee) and which were deposited in accordance with the terms
of Article Four hereof and not in violation of Section 1303 hereof for the
payment of principal of (and premium, if any, on) and interest on the
Securities shall not be subordinated to the prior payment of any Senior
Indebtedness or subject to the restrictions set forth in this Article Thirteen,
and none of the Holders shall be obligated to pay over any such amount to the
Company or any holder of Senior Indebtedness or any other creditor of the
Company.
-18-
<PAGE> 19
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year first
above written.
SNYDER OIL CORPORATION
By: /s/ JAMES H. SHONSEY
------------------------------------
James H. Shonsey
Vice President - Finance
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ JOHN G. JONES
------------------------------------
Name: John G. Jones
---------------------------
Title: Senior Trust Officer
---------------------------
-19-
<PAGE> 1
EXHIBIT 4.3
- --------------------------------------------------------------------------------
SNYDER OIL CORPORATION
SUBSIDIARY GUARANTORS
Named Herein
and
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
---------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of June 10, 1997
to
Indenture dated as of June 10, 1997
---------------
$175,000,000
8 3/4% Senior Subordinated Notes due 2007
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Other Definition Changes. . . . . . . . . . . . . . . . 20
Section 1.3 Other Definitions. . . . . . . . . . . . . . . . . . . 20
ARTICLE II - NOTE FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.1 Form of Face of Note . . . . . . . . . . . . . . . . . 21
Section 2.2 Form of Reverse of Note . . . . . . . . . . . . . . . . 23
Section 2.3 Form of Notation Relating to Subsidiary Guarantees . . 27
ARTICLE III - THE NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.1 Forms Generally . . . . . . . . . . . . . . . . . . . . 29
Section 3.2 Title and Terms . . . . . . . . . . . . . . . . . . . . 30
Section 3.3 Denominations . . . . . . . . . . . . . . . . . . . . . 30
Section 3.4 Book-Entry Provisions for Global Note . . . . . . . . . 30
ARTICLE IV - DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . 31
Section 4.1 Events of Default . . . . . . . . . . . . . . . . . . . 31
Section 4.2 Acceleration of Maturity; Rescission and Annulment . . 33
ARTICLE V - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OF OR LEASE . . . . . 35
Section 5.1 Consolidation, Merger, Conveyance, Transfer Of or
Lease . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VI - SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . 37
Section 6.1 Additional Provisions Relating to Supplemental
Indentures. . . . . . . . . . . . . . . . . . . . . . . 37
Section 6.2 Additional Restrictions on Supplemental Indentures . . 37
Section 6.3 Notice of Supplemental Indentures and Waivers . . . . . 38
Section 6.4 Effect on Senior Indebtedness . . . . . . . . . . . . . 38
ARTICLE VII - COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.1 Existence . . . . . . . . . . . . . . . . . . . . . . . 39
Section 7.2 Maintenance of Properties . . . . . . . . . . . . . . . 39
Section 7.3 Statement by Officer as to Default . . . . . . . . . . 39
Section 7.4 Additional Covenants . . . . . . . . . . . . . . . . . 40
Section 7.5 Waiver of Certain Covenants . . . . . . . . . . . . . . 54
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE VIII - REDEMPTION OF NOTES . . . . . . . . . . . . . . . . . 54
Section 8.1 Right of Redemption . . . . . . . . . . . . . . . . . . 54
ARTICLE IX - DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . 55
Section 9.1 Defeasance and Discharge . . . . . . . . . . . . . . . 55
Section 9.2 Covenant Defeasance . . . . . . . . . . . . . . . . . . 55
Section 9.3 Conditions to Defeasance or Covenant Defeasance . . . . 55
ARTICLE X - SUBSIDIARY GUARANTEES . . . . . . . . . . . . . . . . . . . . . . 56
Section 10.1 Subsidiary Guarantees . . . . . . . . . . . . . . . . . 56
</TABLE>
ii
<PAGE> 4
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of June 10, 1997, is among
SNYDER OIL CORPORATION, a Delaware corporation (hereinafter called the
"Company"), the SUBSIDIARY GUARANTORS (as defined hereinafter) and TEXAS
COMMERCE BANK NATIONAL ASSOCIATION, a national banking association (hereinafter
called the "Trustee").
RECITALS
WHEREAS, the Company has executed and delivered to the Trustee an
Indenture, dated as of June 10, 1997 (the "Base Indenture"), as supplemented by
the First Supplemental Indenture, dated as of June 10, 1997 (together with the
Base Indenture, the "Original Indenture"), and as supplemented by this Second
Supplemental Indenture (together with the Original Indenture, the "Indenture"),
providing for the issuance and sale by the Company from time to time of its
debt securities (the "Securities"), issuable in one or more series;
WHEREAS, all capitalized terms used herein which are defined in the
Original Indenture shall have the meanings assigned to them in the Original
Indenture unless otherwise defined herein;
WHEREAS, Section 901(6) of the Original Indenture permits the execution
of supplemental indentures without the consent of any Holders to establish the
form and terms of any series of Securities;
WHEREAS, 901(5) of the Original Indenture permits the execution of
supplemental indentures without the consent of any Holders to change or
eliminate an provision of the Original Indenture with respect to any series of
Securities when there is no Security of such series Outstanding;
WHEREAS, Sections 901(2) and 901(3) of the Original Indenture permit the
execution of supplemental indentures without the consent of any Holders to add
to the covenants of the Company and to add any additional Events of Default,
respectively, for the benefit of all or any series of Securities;
WHEREAS, Section 301 of the Original Indenture provides that the Company
may enter into an indenture supplemental to the Original Indenture to establish
certain terms of a series of Securities issued pursuant to the Original
Indenture;
WHEREAS, the Company has duly authorized the issuance of a series of its
Securities named its 8 3/4% Senior Subordinated Notes due 2007 (the "Notes") of
substantially the tenor and in the amount hereinafter set forth;
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this Second Supplemental Indenture to supplement and amend the Original
Indenture insofar as it will apply to the Notes (and the related Subsidiary
Guarantees) in certain respects; and
<PAGE> 5
WHEREAS, all things necessary have been done to make the Notes, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and the related
Subsidiary Guarantees, when executed by the Subsidiary Guarantors and delivered
hereunder and duly issued by the Subsidiary Guarantors, the valid obligations
of the Subsidiary Guarantors, and to make this Second Supplemental Indenture a
valid agreement of the Company and the Subsidiary Guarantors, in accordance
with their and its terms.
NOW, THEREFORE, the Company, the Subsidiary Guarantors and the Trustee
hereby agree that the following provisions supplement and amend the Original
Indenture solely with respect to the series of Securities that consists of the
Notes:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
"6% Convertible Preferred Stock" means the 6% convertible preferred
stock, par value $.01 per share, of the Company.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an acquisition of Properties from such Person or (b)
outstanding at the time such Person becomes a Subsidiary of any other Person
(other than any Indebtedness incurred in connection with, or in contemplation
of, such acquisition or such Person becoming such a Subsidiary). Acquired
Indebtedness shall be deemed to be incurred on the date, of the related
acquisition of Properties from any Person or the date the acquired Person
becomes a Subsidiary.
"Adjusted Consolidated Net Tangible Assets" means (without duplication),
as of the date of determination, (i) the sum of (a) discounted future net
revenues from proved oil and gas reserves of the Company and its Restricted
Subsidiaries calculated in accordance with Commission guidelines before any
state or federal income taxes, with no less than 90% of such discounted future
net revenues estimated or audited by one or more nationally recognized firms of
independent petroleum engineers in a reserve report prepared as of the end of
the Company's most recently completed fiscal year, as increased by, as of the
date of determination, the estimated discounted future net revenues from (1)
estimated proved oil and gas reserves acquired since the date of such year-end
reserve report, and (2) estimated oil and gas reserves attributable to upward
revisions of estimates of proved oil and gas reserves since the date of such
year-end reserve report due to exploration, development or exploitation
activities, in each case calculated in accordance with Commission guidelines
(utilizing the prices utilized in such year-end reserve report), and decreased
by, as of the date of determination, the estimated discounted future net
revenues from (3) estimated proved oil and gas reserves produced or disposed of
since the date of such year-end reserve report and (4) estimated oil and gas
reserves attributable to downward revisions of estimates of proved oil and gas
reserves since the date of such year-end reserve report due to changes in
geological conditions or other factors
2
<PAGE> 6
which would, in accordance with standard industry practice, cause such
revisions, in each case calculated in accordance with Commission guidelines
(utilizing the prices utilized in such year-end reserve report); provided that,
in the case of each of the determinations made pursuant to clauses (1) through
(4), such increases and decreases shall be as estimated by the Company's
petroleum engineers, unless in the event that there is a Material Change as a
result of such acquisitions, dispositions or revisions, then the discounted
future net revenues utilized for purposes of this clause (i)(a) shall be
confirmed in writing by a nationally recognized firm of independent petroleum
engineers, (b) the capitalized costs that are attributable to oil and gas
properties of the Company and its Restricted Subsidiaries to which no proved
oil and gas reserves are attributable, based on the Company's books and records
as of a date no earlier than the date of the Company's latest annual or
quarterly financial statements, (c) the Net Working Capital of the Company and
its Restricted Subsidiaries on a date no earlier than the date of the Company's
latest annual or quarterly financial statements and (d) the greater of (i) the
net book value on a date no earlier than the date of the Company's latest
annual or quarterly financial statements or (ii) the appraised value, as
estimated by independent appraisers, of other tangible assets (including,
without duplication, Investments in unconsolidated Restricted Subsidiaries) of
the Company and its Restricted Subsidiaries, as of the date no earlier than the
date of the Company's latest audited financial statements, minus (ii) the sum
of (a) minority interests (other than a minority interest in a Subsidiary that
is a business trust or similar entity formed for the primary purpose of issuing
preferred securities the proceeds of which are loaned to the Company or a
Restricted Subsidiary), (b) any net gas balancing liabilities of the Company
and its Restricted Subsidiaries reflected in the Company's latest audited
financial statements, (c) to the extent included in (i)(a) above, the
discounted future net revenues, calculated in accordance with Commission
guidelines (utilizing the prices utilized in the Company's year-end reserve
report), attributable to reserves which are required to be delivered to third
parties to fully satisfy the obligations of the Company and its Restricted
Subsidiaries with respect to Volumetric Production Payments on the schedules
specified with respect thereto and (d) the discounted future net revenues,
calculated in accordance with Commission guidelines, attributable to reserves
subject to Dollar-Denominated Production Payments which, based on the estimates
of production and price assumptions included in determining the discounted
future net revenue specified in (i)(a) above, would be necessary to fully
satisfy the payment obligations of the Company and its Restricted Subsidiaries
with respect to Dollar-Denominated Production Payments on the schedules
specified with respect thereto. If the Company changes its method of
accounting from the successful efforts method to the full cost method or a
similar method of accounting, "Adjusted Consolidated Net Tangible Assets" will
continue to be calculated as if the Company were still using the successful
efforts method of accounting.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the fair value of the Properties of such Subsidiary
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date), but excluding
liabilities under its Subsidiary Guarantee, of such Subsidiary Guarantor at
such date.
3
<PAGE> 7
"Affiliate" of any specified Person means (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person or (ii) any other Person who is a director
or executive officer of (a) such specified Person or (b) any Person described
in the preceding clause (i). For the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease or
other disposition to any Person other than the Company or any of its Restricted
Subsidiaries (including, without limitation, by way of merger or consolidation)
(collectively, for purposes of this definition, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) any Capital
Stock of any Restricted Subsidiary held by the Company or any Restricted
Subsidiary, (ii) all or substantially all of the Properties of the Company or
any of its Restricted Subsidiaries or (iii) any other Properties of the Company
or any of its Restricted Subsidiaries (including Production Payments) other
than (a) a disposition of hydrocarbons or other mineral products (other than
Production Payments), inventory, accounts receivable, cash, Cash Equivalents or
other property in the ordinary course of business, (b) any lease, abandonment,
disposition, relinquishment or farm-out of any oil and gas Property in the
ordinary course of business or (c) the liquidation Of Property received in
settlement of debts owing to the Company or any Restricted Subsidiary as a
result of foreclosure, perfection or enforcement of any Lien or debt, which
debts were owing to the Company or any Restricted Subsidiary in the ordinary
course of business of the Company or such Restricted Subsidiary. For the
purposes of this definition, the term "Asset Sale" shall not include (i) any
transfer of Properties which is governed by, and made in accordance with, the
provisions of Article Eight hereof, (ii) any transfer of Properties to an
Unrestricted Subsidiary, if permitted under Section 1012 hereof, (iii) any
transfer of the securities of or property or assets of Patina or SOCO
International or (iv) any transfer, in one or a series of related transactions,
of Properties having a Fair Market Value of less than $2,000,000.
"Average Life" means, with respect to any Indebtedness, as at any date
of determination, the quotient obtained by dividing (i) the sum of the products
of (a) the number of years (and any portion thereof) from the date of
determination to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund or mandatory
redemption payment requirements) of such Indebtedness multiplied by (b) the
amount of each such principal payment by (ii) the sum of all such principal
payments.
"Board of Directors" means, with respect to the Company, either the
board of directors of the Company or any duly authorized committee of such
board of directors and, with respect to any Subsidiary, either the board of
directors of such Subsidiary or any duly authorized committee of that board.
4
<PAGE> 8
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
its Board of Directors and, to be in full force and effect on the date of such
certification, and delivered to the Trustee, and with respect to a Subsidiary,
a copy of a resolution certified by the Secretary or an Assistant Secretary of
such Subsidiary to have been duly adopted by its Board of Directors and to be
in full force and effect on the date of such certification, delivered to the
Trustee.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 365 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) demand and time deposits and certificates of
deposit or acceptances with a maturity of 365 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 $500,000,000; (iii)
commercial paper with a maturity of 365 days or less issued by a corporation
that is not an Affiliate of the Company and is organized under the laws of any
state of the United States or the District of Columbia and rated at least A-1
by S&P or at least P-1 by Moody's; (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the types described in
clause (i) above entered into with any commercial bank meeting the
specifications of clause (ii) above; (v) overnight bank deposits and bankers'
acceptances at any commercial bank meeting the qualifications specified in
clause (ii) above; (vi) deposits available for withdrawal on demand with any
commercial bank not meeting the qualifications specified in clause (ii) above
but which is organized under the laws of any country in which the Company or
any Restricted Subsidiary maintains an office or is engaged in the Oil and Gas
Business, provided that (a) all such deposits are required to be made in such
accounts in the ordinary course of business, (b) such deposits do not at any
one time exceed $5,000,000 in the aggregate and (c) no funds so deposited
remain on deposit in such bank for more than 30 days; (vii) deposits available
for withdrawal on demand with any commercial bank not meeting the
qualifications specified in clause (ii) above but which is a lending bank under
any of the Company's or any Restricted Subsidiary's credit facilities, provided
all such deposits do not exceed $5,000,000 in the aggregate at any one time;
and (viii) investments in money market funds substantially all of whose assets
comprise securities of the types described in clauses (i) through (v).
"Change of Control" means the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act), other than the Permitted Holder, is or becomes the
"beneficial owner" (as defined in Rule l3d-3 under the Exchange Act), directly
or indirectly, of more than 50% of the total voting power of the outstanding
Voting Stock of the Company; (ii) the Company is merged with or into or
consolidated with another Person and, immediately after giving effect to the
merger or consolidation, (a) less than 50% of the total voting power of the
outstanding Voting Stock of the surviving or resulting Person is then
"beneficially owned" (within the meaning of Rule 13d-3 under the Exchange Act)
in the aggregate by the stockholders of the Company immediately prior to such
merger or consolidation, and (b) any "person" or "group" (as defined in Section
13(d)(3) or 14(d)(2) of the Exchange Act) has become the direct or indirect
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act) of more
5
<PAGE> 9
than 50% of the total voting power of the Voting Stock of the surviving or
resulting Person; (iii) the Company, either individually or in conjunction,
with one or more Restricted Subsidiaries, sells, assigns, conveys, transfers,
leases, or otherwise disposes of, or one or more Restricted Subsidiaries sells,
assigns, conveys, transfers, leases or otherwise dispose of, all or
substantially all of the Properties of the Company and the Restricted
Subsidiaries, taken as a whole (either in one transaction or a series of
related transactions), including Capital Stock of the Restricted Subsidiaries,
to any Person (other than the Company or a Wholly Owned Restricted Subsidiary);
(iv) during any consecutive two-year period, individuals who at the beginning
of such period constituted the Board of Directors of the Company (together with
any new directors whose election by such Board of Directors or whose nomination
for election by the stockholders of the Company was approved by a vote of a
majority of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office; or (v) the liquidation or
dissolution of the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended, as now
or hereafter in effect, together with all regulations thereunder issued by the
Internal Revenue Service.
"Common Stock" of any Person means Capital Stock of such Person that
does not rank prior, as to the payment of dividends or as to the distribution
of assets upon any voluntary or involuntary liquidation, dissolution or
winding-up of such Person, to shares of Capital Stock of any other class of
such Person.
"Consolidated Exploration Expenses" means, for any period, exploration
expenses of the Company and its Restricted Subsidiaries for such period, as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, for any period, the
ratio of (i) the sum of Consolidated Net Income, Consolidated Interest Expense,
Consolidated Exploration Expenses, Consolidated Income Tax Expense and
Consolidated Non-cash Charges deducted in computing Consolidated Net Income, in
each case, for such period of the Company and its Restricted Subsidiaries on a
consolidated basis, all determined in accordance with GAAP, decreased (to the
extent included in determining Consolidated Net Income) by the sum of (a) the
amount of deferred revenues that are amortized during such period and are
attributable to reserves that are subject to Volumetric Production Payments and
(b) amounts recorded in accordance with GAAP as repayments of principal and
interest pursuant to Dollar-Denominated Production Payments to (ii) the
Consolidated Interest Expense for such period; provided, however, that (a) the
Consolidated Fixed Charge Coverage Ratio shall be calculated on the assumption
that (1) the Indebtedness to be incurred (and all other Indebtedness incurred
after the first day of such period of four full fiscal quarters referred to in
Section 1014(i) hereof through and including the date of determination) and (if
applicable) the application of the net proceeds therefrom (and from any other
such Indebtedness), including to refinance other Indebtedness, had been
incurred on the first day of such four-quarter period and, in the case of
Acquired Indebtedness, on the assumption that the related transaction
6
<PAGE> 10
(whether by means of purchase, merger or otherwise) also had occurred on such
date with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation and (2) any acquisition or disposition
by the Company or any Restricted Subsidiary of any Properties outside the
ordinary course of business or any repayment of any principal amount of any
Indebtedness of the Company or any Restricted Subsidiary prior to the Stated
Maturity thereof, in either case since the first day of such period of four
full fiscal quarters through and including the date of determination, had been
consummated on such first day of such four-quarter period, (b) in making such
computation, the Consolidated Interest Expense attributable to interest on any
Indebtedness required to be computed on a pro forma basis in accordance with
Section 1014(i) hereof and (1) bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period and (2) which was not outstanding during
the period for which the computation is being made but which bears, at the
option of the Company, a fixed or floating rate of interest, shall be computed
by applying, at the option of the Company, either the fixed or floating rate,
(c) in making such computation, the Consolidated Interest Expense attributable
to interest on any Indebtedness under a revolving credit facility required to
be computed on a pro forma basis in accordance with Section 1014(i) hereof
shall be computed based upon the average daily balance of such Indebtedness
during the applicable period, provided that such average daily balance shall be
reduced by the amount of any repayment of Indebtedness under a revolving credit
facility during the applicable period, which repayment permanently reduced the
commitments or amounts available to be reborrowed under such facility, (d)
notwithstanding clauses (b) and (c) of this proviso, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Rate Protection Obligations, shall be deemed to
have accrued at the rate per annum resulting after giving effect to the
operation of such agreements, (e) in making such calculation, Consolidated
Interest Expense shall exclude interest attributable to Dollar-Denominated
Production Payments, and (f) if after the first day of the period referred to
in clause (i) of this definition the Company has retired any Indebtedness out
of the net cash proceeds of the issue and sale of shares of Qualified Capital
Stock of the Company within 30 days of such issuance and sale, Consolidated
Interest Expense shall be calculated on a pro forma basis as if such
Indebtedness had been retired on the first day of such period.
"Consolidated Income Tax Expense" means, for any period, the provision
for federal, state, local and foreign income taxes (including state franchise
taxes accounted for as income taxes in accordance with GAAP) of the Company and
its Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, without
duplication, (i) the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period as determined on a consolidated basis
in accordance with GAAP, including, without limitation, (1) any amortization of
debt discount, (2) the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (3) the interest portion of any
deferred payment obligation constituting indebtedness, (4) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (5) all accrued interest, in each case to the
extent attributable to such period, (b) to the extent any Indebtedness of any
Person (other than
7
<PAGE> 11
the Company or a Restricted Subsidiary) is guaranteed by the Company or any
Restricted Subsidiary, the aggregate amount of interest paid (to the extent not
accrued in a prior period) or accrued by such other Person during such period
attributable to any such Indebtedness, in each case to the extent attributable
to that period, (c) the aggregate amount of the interest component of
Capitalized Lease Obligations paid (to the extent not accrued in a prior
period), accrued or scheduled to be paid or accrued by the Company and its
Restricted Subsidiaries during such period as determined on a consolidated
basis in accordance with GAAP and (d) the aggregate amount of dividends paid
(to the extent not accrued in a prior period) or accrued on Redeemable Capital
Stock or 6% Convertible Preferred Stock of the Company and its Restricted
Subsidiaries, to the extent such Redeemable Capital Stock or 6% Convertible
Preferred Stock is owned by Persons other than the Company or its Restricted
Subsidiaries and to the extent such dividends are not paid in Common Stock,
divided by one minus the applicable actual combined federal, state, local and
foreign income tax rate of the Company and its Subsidiaries (expressed as a
decimal), on a consolidated basis, for the period preceding the date of the
transaction giving rise to the need to calculate Consolidated Interest Expense,
less (ii) to the extent included in clause (i), amortization of capitalized
debt issuance costs of the Company and its Restricted Subsidiaries during such
period.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Company and its Restricted Subsidiaries for such period
as determined in accordance with GAAP, adjusted by excluding (i) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto),
(ii) net after-tax gains or losses (less all fees and expenses relating
thereto) attributable to Asset Sales, (iii) the net income (or net loss) of any
Person (other than the Company or any of its Restricted Subsidiaries), in which
the Company or any of its Restricted Subsidiaries has an ownership interest,
except to the extent of the amount of dividends or other distributions or
interest on indebtedness actually paid to the Company or any of its Restricted
Subsidiaries in cash by such other Person during such period (regardless of
whether such cash dividends, distributions or interest on indebtedness is
attributable to net income (or net loss) of such Person during such period or
during any prior period), (iv) net income (or net loss) of any Person combined
with the Company or any of its Restricted Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination
and (v) the net income of any Restricted Subsidiary to the extent that the
declaration or payment of dividends or similar distributions by that Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgement, decree, order, statute, rule or governmental regulation
applicable to that Restricted Subsidiary or its stockholders (vi) income
resulting from the transfers of property or assets received by the Company or
Restricted Subsidiaries from Unrestricted Subsidiaries, (vii) the cumulative
effect of a change in accounting principles and (viii) any write-downs of non-
current assets, provided, however, that any ceiling limitation write-downs
shall be treated as capitalized costs. Notwithstanding for foregoing, any net
gains or losses related to the sale or disposition of any securities of or any
properties or assets of Patina or SOCO International shall be excluded from the
determination of Consolidated Net Income.
"Consolidated Net Worth" means, at any date, the consolidated
stockholders' equity of the Company and its Restricted Subsidiaries less the
amount of such stockholders' equity attributable
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<PAGE> 12
to Redeemable Capital Stock or treasury stock of the Company and its Restricted
Subsidiaries, as determined in accordance with GAAP.
"Consolidated Non-cash Charges" means, for any period, the aggregate
depreciation, depletion, amortization and other non-cash expenses of the
Company and its Restricted Subsidiaries reducing Consolidated Net Income for
such period, determined on a consolidated basis in accordance with GAAP
(excluding any such non-cash charge which requires an accrual of or reserve for
cash charges for any future period).
"Convertible Subordinated Notes" means the 7% convertible subordinated
notes due 2001 of the Company.
"Default" means any event that is or with the passage of time or giving
of notice or both would be an Event of Default.
"Depository" means The Depository Trust Company, its nominees and their
respective successors.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors of the
Company is required to deliver a Board Resolution hereunder, a member of the
Board of Directors of the Company who does not have any material direct or
indirect financial interest (other than in interest arising solely from the
beneficial ownership of Capital Stock of the Company) in or with respect to
such transaction or series of transactions.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of The United States Code, as amended from time to time.
The term "guarantee" means, as applied to any obligation, (i) a
guarantee (other than by endorsement of negotiable instruments or documents 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 all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of credit;
provided however, that a guarantee by any Person shall not include a
contractual commitment by one Person to invest in another Person provided that
such Investment is otherwise permitted by this Indenture. When used as a verb,
"guarantee" shall have a corresponding meaning.
"Guarantor Senior Indebtedness" means the principal of (and premium, if
any, on) and interest on (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law) and other
amounts due on or in correction with (including any fees,
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<PAGE> 13
premiums, expenses, including costs of collection, and indemnities) any
Indebtedness of a Subsidiary Guarantor, whether outstanding on the date of this
Second Supplemental Indenture or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness will be pari passu with or subordinated in
right of payment to its Subsidiary Guarantee. Notwithstanding the foregoing,
Guarantor Senior Indebtedness of a Subsidiary Guarantor shall not include (i)
Indebtedness of such Subsidiary Guarantor evidenced by its Subsidiary
Guarantee, (ii) Indebtedness of such Subsidiary Guarantor that is expressly
pari passu with its Subsidiary Guarantee or is expressly subordinated in right
of payment to any Guarantor Senior Indebtedness of such Subsidiary Guarantor or
its Subsidiary Guarantee, (iii) Indebtedness of such Subsidiary Guarantor to
the extent incurred in violation of Section 1014 hereof, (iv) Indebtedness of
such Subsidiary Guarantor to the Company or any of the Company's other
Subsidiaries or to any Affiliate of the Company or any Subsidiary of such
Affiliate and (v) Indebtedness which when incurred and without regard to any
election under Section 1111(b) of the Federal Bankruptcy Code is without
recourse to such Subsidiary Guarantor.
"Holder" means a Person in whose name a Note is registered in a Security
Register.
"Indenture" means the Original Indenture, as supplemented by the First
Supplemental Indenture and as further supplemented by this Second Supplemental
Indenture and as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto and thereto entered into pursuant to the
applicable provisions hereof and thereof.
"Interest Rate Protection Obligations" means the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements or arrangements designed to
protect against or manage such Person's and any of its Subsidiaries' exposure
to fluctuations in interest rates.
"Investment" means, with respect to any Person, any direct or indirect
advance, loan, guarantee of Indebtedness or other extension of credit or
capital contribution to (by means of any transfer of cash or other Property to
others or any payment for Property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities (including derivatives and
including, without limitation, any interests in any partnership or joint
venture) or evidences of Indebtedness issued by, any other Person. In addition,
(i) the Fair Market Value of the net assets of any Restricted Subsidiary at the
time that such Restricted Subsidiary is designated an Unrestricted Subsidiary
shall be deemed to be an "Investment" made by the Company in such Unrestricted
Subsidiary at such time and (ii) the fair market value of Capital Stock
retained by the Company or a Restricted Subsidiary in connection with the sale
or issuance of Capital Stock of a Restricted Subsidiary in accordance with
Section 1016 hereof that,
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<PAGE> 14
as a result of such transaction, is no longer a Restricted Subsidiary shall be
deemed to be an "Investment" made at the time of such transaction.
"Investments" shall exclude (a) extensions of trade credit under a joint
operating agreement or otherwise in the ordinary course of business, workers'
compensation, utility, lease and similar deposits and prepaid expenses in the
ordinary course of business, (b) Interest Rate Protection Obligations entered
into in the ordinary course of business or as required by any Permitted
Indebtedness or any other Indebtedness incurred in compliance with Section 1016
hereof, but only to the extent that the stated aggregate notional amounts of
such Interest Rate Protection Obligations do not exceed 105% of the aggregate
principal amount of such Indebtedness to which such Interest Rate Protection
Obligations relate, (c) bonds, notes, debentures or other securities received
as a result of Asset Sales permitted under Section 1019 hereof and (d)
endorsements of negotiable instruments and documents in the ordinary course of
business.
"Material Change" means an increase or decrease (excluding changes that
result solely from changes in prices) of more than 20% during a fiscal quarter
in the estimated discounted future net revenues from proved oil and gas
reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (i)(a) of the definition of Adjusted Consolidated Net
Tangible Assets; provided, however, that the following will be excluded from
the calculation of Material Change: (i) any acquisitions during the quarter of
oil and gas reserves that have been estimated by a nationally recognized firm
of independent petroleum engineers and on which a report or reports exist and
(ii) any disposition of properties held at the beginning of such quarter that
have been disposed of as provided in Section 1019 hereof.
"Material Subsidiary" means, at any particular time, any Restricted
Subsidiary that, together with its Subsidiaries, (a) accounted for more than 5%
of the consolidated revenues of the Company and its Restricted Subsidiaries for
the most recently completed fiscal year of the Company, or (b) was the owner of
more than 5% of the consolidated assets of the Company and its Restricted
Subsidiaries at the end of such fiscal year, all as shown in the case of (a)
and (b) on the consolidated financial statements of the Company and its
Restricted Subsidiaries for such fiscal year.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Restricted Subsidiary), net of (i)
brokerage commissions and other fees and expenses (including fees and expenses
of legal counsel and investment banks) related to such Asset Sale, (ii)
provisions for all taxes payable as a result of such Asset Sale, (iii) amounts
required to be paid to any Person (other than the Company or any Restricted
Subsidiary) owning a beneficial interest in the Property subject to the Asset
Sale and (iv) appropriate amounts to be provided by the Company or any
Restricted Subsidiary, as the case may be, as a reserve required in accordance
with GAAP consistently applied against any liabilities associated with such
Asset Sale and retained by the Company or any Restricted Subsidiary, as the
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<PAGE> 15
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, all as reflected in an Officers' Certificate delivered to the
Trustee; provided, however, that any amounts remaining after adjustments.
revaluations or liquidations of such reserves shall constitute Net Cash
Proceeds.
"Net Working Capital" means (i) all current assets of the Company and
its Restricted Subsidiaries, minus (ii) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in financial statements of the Company
prepared in accordance with GAAP.
"Non-payment Event of Default" means any event (other than a Payment
Event of Default), the occurrence of which (with or without notice or the
passage of time) entitles one or more Persons to accelerate the maturity of any
Specified Senior Indebtedness.
"Non-Recourse Indebtedness" means Indebtedness or that portion of
Indebtedness of the Company or a Restricted Subsidiary incurred in connection
with the acquisition by the Company or a Restricted Subsidiary of any property
or assets and as to which (i) the holders of such Indebtedness agree that they
will look solely to the property or assets so acquired and securing such
Indebtedness for payment on or in respect of such Indebtedness and (ii) no
default with respect to such Indebtedness would permit (after notice or passage
of time or both), according to the terms thereof, any holder of any
Indebtedness of the Company or a Restricted Subsidiary to declare a default on
such Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity.
"Notes" has the meaning stated in the recitals of this Second
Supplemental Indenture and more particularly means any Notes authenticated and
delivered under this Second Supplemental Indenture.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Oil and Gas Business" means (i) the acquisition, exploration,
development, operation and disposition of interests in oil, gas and other
hydrocarbon Properties, (ii) the gathering, marketing. treating, processing,
storage, selling and transporting of any production from such interests or
Properties, (iii) any business relating to or arising from exploration for or
development, production, treatment, processing, storage, transportation or
marketing of oil, gas, hydrocarbons and other minerals and products produced in
association therewith and (iv) any activity necessary, appropriate or
incidental to the activities described in the foregoing clauses (i) through
(iii) of this definition.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company (or any Subsidiary Guarantor), including an employee of
the Company (or any Subsidiary Guarantor), and who shall be reasonably
acceptable to the Trustee.
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<PAGE> 16
"Outstanding," when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(1) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Notes, or portions thereof, for whose payment or
redemption money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Notes,
provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given Pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Notes, except to the extent provided in Sections 402 and
403 hereof, with respect to which the Company has effected legal
defeasance or covenant defeasance as provided in Article Four hereof;
and
(4) Notes which have been paid pursuant to Section 306 hereof
or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona fide
purchaser in whose hands the Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company, any Subsidiary Guarantor or any other obligor upon the Notes or
any Affiliate of the Company, any Subsidiary Guarantor or such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, consent,
notice or waiver, only Notes which the Trustee actually knows to be so owned
shall be so disregarded. Notes 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 Notes and
that the pledgee is not the Company, any Subsidiary Guarantor or any other
obligor upon the Notes or any Affiliate of the Company, any Subsidiary
Guarantor or such other obligor.
"Patina" means Patina Oil & Gas Corporation, a Delaware corporation.
"Payment Event of Default" means any default in the payment or required
prepayment of Principal of (or premium, if any, on) or interest on any
Specified Senior Indebtedness when due (whether at final maturity, upon
scheduled installment, upon acceleration or otherwise).
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<PAGE> 17
"Permitted Designees" means (i) trusts for the benefit of the Permitted
Holder and (ii) in the event of death or incompetence of the Permitted Holder,
his estate, heirs, executor, administrator, committee or other personal
representative, provided that if any such estate, heir, executor,
administrator, committee or other personal representative acquires, subsequent
to the death or incapacity of the Permitted Holder, any additional shares of
Voting Stock of the Company, such person will cease to be a Permitted Designee.
"Permitted Guarantor Junior Notes" means with respect to any Subsidiary
Guarantor, equity securities or subordinated debt securities of such Subsidiary
Guarantor or any successor Obligor with respect to its Guarantor Senior
Indebtedness provided for by a plan of reorganization or readjustment that, in
the case of any such subordinated debt securities, are subordinated in right of
payment to all Guarantor Senior Indebtedness of such Subsidiary Guarantor or
successor obligor that may at the time be outstanding to substantially the same
extent as, or to a greater extent than, the Subsidiary Guarantee of such
Subsidiary Guarantor is so subordinated as provided in this Indenture.
"Permitted Holder" means John C. Snyder and his Permitted Designees.
"Permitted Indebtedness" means any of the following:
(i) Indebtedness under the Bank Credit Facility in an
aggregate principal amount at any one time outstanding not to exceed the
greater of (a) $250,000,000 and (b) an amount equal to the sum of (1)
$100,000,000 and (2) 15% of Adjusted Consolidated Net Tangible Assets,
less any amounts applied to repay or prepay permanently any such
Indebtedness in accordance with Section 1019 hereof, including any
guarantee of any such Indebtedness (including by any Subsidiary) and any
fees, premiums, expenses (including costs of collection), indemnities
and other amounts payable in connection with such indebtedness;
(ii) Indebtedness under the Notes and the Subsidiary
Guarantees;
(iii) Indebtedness outstanding on the date of this Second
Supplemental Indenture (and not repaid or defeased with the proceeds of
the offering of the Notes);
(iv) obligations of the Company or a Restricted Subsidiary
pursuant to Interest Rate Protection Obligations, but only to the extent
that the stated aggregate notional amounts of such obligations do not
exceed 105% of the aggregate principal amount of the Indebtedness
covered by such Interest Rate Protection Obligations; obligations under
currency exchange contracts entered into in the ordinary course of
business; and hedging arrangements that the Company or a Restricted
Subsidiary enters into in the ordinary course of business for the
purpose of protecting its production against fluctuations in oil or
natural gas prices;
(v) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary and Indebtedness of a Restricted Subsidiary to the Company or
a Wholly Owned Restricted
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<PAGE> 18
Subsidiary; provided, however, that upon any subsequent issuance or
transfer of any Capital Stock or any other event which results in any
such Wholly Owned Restricted Subsidiary ceasing to be a Wholly Owned
Restricted Subsidiary or any other subsequent transfer of any such
Indebtedness (except to the Company or a Wholly Owned Restricted
subsidiary), such Indebtedness shall be deemed, in each case, to be
incurred and shall be treated as an incurrence for purposes of Section
1014 at the time the Wholly Owned Restricted Subsidiary in question
ceased to be a Wholly Owned Restricted Subsidiary;
(vi) in-kind obligations relating to net gas balancing
positions arising in the ordinary course of business and consistent with
past practice;
(vii) Indebtedness in respect of bid, performance or surety
bonds issued for the account of the Company or any Restricted Subsidiary
in the ordinary course of business, including guaranties and letters of
credit supporting such bid, performance or surety obligations (in each
case other than for an obligation for money borrowed); any guarantee of
Senior Indebtedness or Guarantor Senior Indebtedness incurred in
compliance with Section 1014 hereof, by a Restricted Subsidiary or the
Company;
(viii) any guarantee of Senior Indebtedness or Guarantor Senior
Indebtedness, incurred in compliance with Section 1014, by a Restricted
Subsidiary or the Company;
(ix) any renewals, substitutions, financings or replacements
(each, for purposes of this clause, a "refinancing") by the Company or a
Restricted Subsidiary of any Indebtedness incurred pursuant to clause
(ii) or (iii) of this definition, including any successive refinancings
by the Company or such Restricted Subsidiary, so long as (a) any such
new Indebtedness shall be in a principal amount that does not exceed the
principal amount (or, if such Indebtedness being refinanced provides for
an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration thereof, such lesser amount as of the
date of determination) so refinanced plus the amount of any premium
required to be paid in connection with such refinancing pursuant to the
terms of the Indebtedness refinanced or the amount of any premium
reasonably determined by the Company or such Restricted Subsidiary as
necessary to accomplish such refinancing, plus the amount of expenses of
the Company or such Restricted Subsidiary incurred in connection with
such refinancing, and (b) in the case of any refinancing of Indebtedness
of the Company that is not Senior Indebtedness, such new Indebtedness is
either pari passu with the Notes or subordinated to the Notes at least
to the same extent as the Indebtedness being refinanced and (c) such new
Indebtedness has an Average Life equal to or longer than the Average
Life of the Indebtedness being refinanced and a final Stated Maturity
equal to or later than the final Stated Maturity of the Indebtedness
being refinanced;
(x) Non-Recourse Indebtedness; and
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<PAGE> 19
(xi) any additional Indebtedness in an aggregate principal
amount not in excess of $25,000,000 at any one time outstanding.
"Permitted Investments" means any of the following: (i) Investments in
Cash Equivalents; (ii) Investments in the Company or any of its Restricted
Subsidiaries; (iii) Investments in an amount not to exceed $10,000,000 at any
one time outstanding; (iv) Investments by the Company or any of its Restricted
Subsidiaries in another Person, if as a result of such Investment (a) such
other Person becomes a Restricted Subsidiary or (b) such other Person is merged
or consolidated with or into, or transfers or conveys all or substantially all
of its Properties to, the Company or a Restricted Subsidiary; (v) 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 a means of activity
exploiting, exploring for, acquiring, developing, processing, gathering,
marketing or transporting oil and gas through agreements, transactions,
interests or arrangements which permit one 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 (a) ownership interests in
oil and gas properties or gathering systems and (b) Investments and
expenditures in the form of or pursuant to operating agreements, processing
agreements, farm-in agreements, farm-out agreements, development agreements,
area of mutual interest agreements, unitization agreements, pooling
arrangements, joint bidding agreements, service contracts, joint venture
agreements, partnership agreements (whether general or limited), subscription
agreements, stock purchase agreements and other similar agreements with third
parties limited liability company agreements (including Unrestricted
Subsidiaries); (vi) entry into any hedging arrangements in the ordinary course
of business for the purpose of protecting the Company's or any Restricted
Subsidiary's production against fluctuations in oil or natural gas prices;
(vii) entry into any currency exchange contract in the ordinary course of
business; and (viii) Investments in stock, obligations or securities received
in settlement of debts owing to the Company or a Restricted Subsidiary as a
result of bankruptcy or insolvency proceedings or upon the foreclosure,
perfection or enforcement of any Lien in favor of the Company or a Restricted
Subsidiary, in each case as to debt owing to the Company or a Restricted
Subsidiary that arose in the ordinary course of business of the Company or any
such Restricted Subsidiary.
"Permitted Liens" means the following types of Liens:
(i) Liens existing as of the date the Notes are first issued
(except to the extent such Liens secure Indebtedness that is repaid or
defeased with the proceeds of the offering of the Notes) and any
renewal, extension or refinancing of any such Lien provided that
thereafter such Lien extends only to the properties that were subject to
such Lien prior to the renewal, extension or refinancing thereof;
(ii) Liens securing the Notes or the Subsidiary Guaranties; and
(iii) Liens in favor of the Company.
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<PAGE> 20
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred or preference stock, whether now outstanding or issued after
the date of this Second Supplemental Indenture, including, without limitation,
all classes and series of preferred or preference stock of such Person.
"Public Equity Offering" means an underwritten public offering for cash
by the Company of its Qualified Capital Stock pursuant to a registration
statement that has been declared effective by the Commission (other than a
registration statement on Form S-8 or any successor form or otherwise relating
to equity securities issuable under any employee benefit plan of the Company).
"Qualified Capital Stock" of any Person means any and all Capital Stock
of such person other than Redeemable Capital Stock.
"Record Date" means a Regular Record Date or a Special Record Date.
"Redemption Date," when used with respect to any Note to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to
this Second Supplemental Indenture.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price at which it is to be redeemed pursuant to this Second
Supplemental Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the June 1 or December 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Second Supplemental Indenture, unless
such Subsidiary of the Company is an Unrestricted Subsidiary or is designated
as an Unrestricted Subsidiary pursuant to the terms of this Second Supplemental
Indenture.
"S&P" means Standard and Poor's Ratings Service, a division of McGraw-
Hill, Inc., and its successors.
"SOCO International" means SOCO International, Inc., a Delaware
corporation.
"Specified Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (a) all Guarantor Senior Indebtedness of such Subsidiary
Guarantor in respect of the Bank Credit Facility and any renewals, amendments,
extensions, supplements, modifications, deferrals, refinancings or replacements
(each, for purposes of this definition, a "refinancing") thereof by such
Subsidiary Guarantor, including any successive refinancings thereof by such
Subsidiary Guarantor, and (b) any other Guarantor Senior Indebtedness and any
refinancings thereof having a principal amount of at least $10,000,000 as of
the date of determination and provided that the agreements, indentures or other
instruments evidencing such Guarantor Senior Indebtedness or pursuant to which
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<PAGE> 21
such Guarantor Senior Indebtedness was issued specifically designates such
Guarantor Senior Indebtedness as "Specified Guarantor Senior Indebtedness" for
purposes of the Indenture. For purposes of this definition, a refinancing of
any Specified Guarantor Senior Indebtedness shall be treated as Specified
Guarantor Senior Indebtedness only if the Indebtedness issued in such
refinancing ranks or would rank pari passu with the Specified Guarantor Senior
Indebtedness refund and only if the Indebtedness issued in such refinancing is
permitted under Section 1014(i) hereof.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness or any
installment of interest thereon, means the date specified in the instrument
evidencing or governing such Indebtedness as the fixed date on which the
principal of such Indebtedness or such installment of interest is due and
payable.
"Subordinated Indebtedness" means Indebtedness of the Company which is
expressly subordinated in right of payment to the Note.
"Subsidiary" means, with respect to any Person, (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 thereof or (ii) any other Person (other than a
corporation), including, without limitation, a joint venture, in which such
Person, one or more Subsidiaries thereof or such Person and one or more
Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, have at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other Persons
performing similar functions).
"Subsidiary Guarantee" has the meaning specified in Section 1501 hereof.
"Subsidiary Guarantor" means each of (i) DelMar Petroleum, Inc., a
Delaware corporation, (ii) Mexican Flats Service Company, a Delaware
corporation, (iii) Snyder Fluid Technologies, Inc., a Delaware corporation,
(iv) Snyder Gas Marketing, Inc., a Delaware corporation, (v) SOCO Gas Systems,
Inc., a Delaware corporation, (vi) SOCO Holdings, Inc., a Delaware corporation,
(vii) SOCO Louisiana Leasing, Inc., a Delaware corporation, (viii) SOCO
Offshore, Inc., a Delaware corporation, (ix) Western Transmission Corporation,
a Delaware corporation, (x) Wyoming Gathering and Production Company, a
Delaware corporation, (xi) each of the Company's Restricted Subsidiaries, if
any, executing a supplemental indenture in compliance with the provisions of
Section 1015(i) hereof and (xii) any Person that becomes a successor guarantor
of the Notes in compliance with the provisions of Section 1502 hereof.
"Unrestricted Subsidiary" means (i) any Subsidiary of the Company that
at the time of determination is designated an Unrestricted Subsidiary by the
Board of Directors of the Company as provided below and (ii) any Subsidiary of
an Unrestricted Subsidiary. The Board of Directors of the Company may
designate any Subsidiary of the Company as an Unrestricted Subsidiary so long
as (a) neither the Company nor any Restricted Subsidiary is directly or
indirectly liable pursuant to
18
<PAGE> 22
the terms of any Indebtedness of such Subsidiary; (b) no default with respect
to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time
or otherwise) any holder of any other Indebtedness of the Company or any
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its Stated Maturity;
(c) the Company certifies to the Trustee that such designation complies with
Section 1012 hereof; and (d) such designation shall not result in the creation
or imposition of any Lien on any of the Properties of the Company or any
Restricted Subsidiary (other than any Permitted Lien or any Lien the creation
or imposition of which shall have been in compliance with Section 1017 hereof);
provided, however, that with respect to clause (a), the Company or a Restricted
Subsidiary my be liable for Indebtedness of an Unrestricted Subsidiary if (x)
such liability constituted a Permitted Investment or a Restricted Payment
permitted by Section 1012 hereof, in each case at the time of incurrence, or
(y) the liability would be a Permitted Investment at the time of designation of
such Subsidiary as an Unrestricted Subsidiary. Any such designation by the
Board of Directors of the Company shall be evidenced to the Trustee by filing a
Board Resolution with the Trustee giving effect to such designation. The Board
of Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary if, immediately after giving effect to such designation,
(i) no Default or Event of Default shall have occurred and be continuing, (ii)
the Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) under Section 1014(i) hereof and (iii) if any of the Properties
of the Company or any of its Restricted Subsidiaries would upon such
designation become subject to any Lien (other than a Permitted Lien), the
creation or imposition of such Lien shall have been in compliance with Section
1017 hereof. Each of Patina and SOCO International will be an Unrestricted
Subsidiary unless it is designated a Restricted Subsidiary in accordance with
the terms hereof.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of any Person (irrespective of whether or not, at the time, stork
of any other class or classes shall have, or might have, voting power by reason
of the happening of any contingency).
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary to
the extent (i) all of the Capital Stock or other ownership interests in such
Restricted Subsidiary, other than any directors' qualifying shares mandated by
applicable law, is owned directly or indirectly by the Company or (ii) such
Restricted Subsidiary is organized in a foreign jurisdiction and is required
by the applicable laws and regulations of such foreign jurisdiction to be
partially owned by the government of such foreign jurisdiction or individual or
corporate citizens of such foreign jurisdiction in order for such Restricted
Subsidiary to transact business in such foreign jurisdiction, provided that the
Company, directly or indirectly, owns the remaining Capital Stock or ownership
interest in such Restricted Subsidiary and, by contract or otherwise, controls
the management and business of such Restricted Subsidiary and derives the
economic benefits of ownership of such Restricted Subsidiary to substantially
the same extent as if such Restricted Subsidiary were a wholly owned
Subsidiary.
19
<PAGE> 23
Section 1.2 Other Definition Changes.
(i) The following is hereby added to the end of the definition
of "Senior Indebtedness," but only with respect to the Notes issued in
accordance with the provisions hereof: " and (vii) Indebtedness of the
Company to the extent incurred in violation of Section 1014(i) hereof."
(ii) The following is hereby added to the end of the definition
of "Specified Senior Indebtedness," but only with respect to the Notes
issued in accordance with the provisions hereof: "For purposes of this
definition, a refinancing of any Specified Senior Indebtedness shall be
treated as a Specified Senior Indebtedness only if the Indebtedness
issued in such refinancing ranks or would rank pari passu with the
Specified Senior Indebtedness refinanced and only if Indebtedness issued
in such refinancing is permitted by Section 1014(i) hereof."
Section 1.3 Other Definitions.
<TABLE>
<CAPTION>
Defined
Term in Section
---- ----------
<S> <C>
"Agent Members" . . . . . . . . . . . . . . . . . . . . . . . . . . 203
"Change of Control Notice" . . . . . . . . . . . . . . . . . . 1018(ii)
"Change of Control Offer" . . . . . . . . . . . . . . . . . . . 1018(i)
"Change of Control Purchase Date" . . . . . . . . . . . . . . . 1018(i)
"Change of Control Purchase Price" . . . . . . . . . . . . . . 1018(i)
"Excess Proceeds" . . . . . . . . . . . . . . . . . . . . . . . 1019(ii)
"Funding Guarantor" . . . . . . . . . . . . . . . . . . . . . . . . 1605
"Global Note . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
"Net Proceeds Deficiency" . . . . . . . . . . . . . . . . . . 1019(iii)
"Net Proceeds Offer" . . . . . . . . . . . . . . . . . . . . 1019(iii)
"Net Proceeds Payment Date" . . . . . . . . . . . . . . . . . 1019(iii)
"Offered Price" . . . . . . . . . . . . . . . . . . . . . . . 1019(iii)
"Pari Passu Indebtedness Amount" . . . . . . . . . . . . . . 1019(iii)
"Pari Passu Offer" . . . . . . . . . . . . . . . . . . . . . 1019(iii)
"Payment Amount" . . . . . . . . . . . . . . . . . . . . . . 1019(iii)
"Physical Note" . . . . . . . . . . . . . . . . . . . . . . . . . . 201
"Purchase Notice" . . . . . . . . . . . . . . . . . . . . . . 1019(iii)
"Restricted Payment" . . . . . . . . . . . . . . . . . . . . . 1012(i)
"Subsidiary Guarantor Non-Payment Default" . . . . . . . . . . 1609(ii)
"Subsidiary Guarantor Payment Default" . . . . . . . . . . . . 1609(i)
"Subsidiary Guarantor Payment Notice" . . . . . . . . . . . . . 1609(ii)
"Surviving Entity . . . . . . . . . . . . . . . . . . . . . . . . 801(a)
"Trigger Date . . . . . . . . . . . . . . . . . . . . . . . . 1018(iii)
</TABLE>
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<PAGE> 24
ARTICLE II
NOTE FORMS
Section 2.1 Form of Face of Note.
SNYDER OIL CORPORATION
8 3/4% Senior Subordinated Note due 2007
No. _____ $_________
CUSIP No. 833482AC6
Snyder Oil Corporation, a Delaware corporation (herein called the
"Company" which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________ or registered assigns the principal sum of ______________
Dollars on June 15, 2007, at the office or agency of the Company referred to
below, and to pay interest thereon, commencing on December 15, 1997 and
continuing semiannually thereafter, on June 15 and December 15 in each year,
from June 10, 1997, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 8.75% per annum,
until the principal hereof is paid or duly provided for, and (to the extent
lawful) to pay on demand interest on any overdue interest at the rate borne by
the Notes from the date on which such overdue interest becomes payable to the
date payment of such interest has been made or duly provided for. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered on the Security
Register at the close of business on the Regular Record Date for such interest,
which shall be the June 1 or December 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest not
so punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date, and such defaulted interest, and (to
the extent lawful) interest on such defaulted interest at the rate borne by the
Notes, may be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered on the Security Register at the close of
business on a Special Record Date for the payment of such defaulted interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Notes not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any, on) and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for
21
<PAGE> 25
payment of public and private debts; provided, however, that payment of
interest may be made on Physical Notes at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register.
[Unless and until it is exchanged in whole or in part for Notes in
definitive form, this Security may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. The Depository Trust Company (55 Water Street, New York, New
York) ("DTC") shall act as the Depository until a successor shall be appointed
by the Company and the Registrar. Unless this certificate is presented by an
authorized representative of the DTC to the issuer or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as may be requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or
such other entity as may be requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.](1)
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SNYDER OIL CORPORATION
By:
----------------------------------
President
Attest:
- ----------------------------
Secretary
- --------------------
(1) This paragraph should be included only if the Security is issued in global
form.
22
<PAGE> 26
Section 2.2 Form of Reverse of Note.
This Note is one of a duly authorized issue of securities of the Company
designated as its 8 3/4% Senior Subordinated Notes due 2007 (herein called the
"Notes"), limited (except as otherwise provided in the Indenture referred to
below) in aggregate principal amount to $175,000,000, which may be issued under
an Indenture dated as of June 10, 1997 between the Company and Texas Commerce
Bank National Association, as trustee (herein called the "Trustee," which term
includes any successor trustee), as amended by a First Supplemental Indenture
dated as of June 10, 1997 (herein called the "Original Indenture"), and a
Second Supplemental Indenture dated as of June 10, 1997 (herein called the
"Supplemental Indenture" and, together with the Original Indenture, the
"Indenture), among the Company, the initial Subsidiary Guarantors named
therein, and the Trustee, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Subsidiary Guarantors, the Trustee and the Holders of the Notes,
and of the terms upon which the Notes are, and are to be, authenticated and
delivered.
The Indebtedness evidenced by the Notes is, to the extent and in the
manner provided in the Indenture, subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the same,
(i) agrees to and shall be bound by such provisions, (ii) authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in the Indenture and
(iii) appoints the Trustee as his attorney-in-fact for such purpose.
The Notes are subject to redemption, at the option of the Company, in
whole or in part, at any time on or after June 15, 2002, upon not less than 30
or more than 60 days' notice at the following Redemption Prices (expressed as
percentages of principal amount) set forth below if redeemed during the 12-
month period beginning June 15 of the years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- --------------
<S> <C>
2002 104.375%
2003 102.916%
2004 101.458%
2005 and thereafter 100.000%
</TABLE>
together in the case of any such redemption with accrued and unpaid interest,
if any, to the Redemption Date (subject to the right of Holders of record on
the relevant Record Date to receive interest due on an Interest Payment Date
that is on or prior to the Redemption Date), all as provided in the Indenture.
In the case of any redemption of Notes, interest installments whose
Stated Maturity is on or prior to the Redemption Date will be payable to
Holders of such Notes, or one or more Predecessor
23
<PAGE> 27
Securities, of record at the close of business on the relevant Record Date
referred to on the face hereof. Notes (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the Redemption Date. In the event of
redemption or purchase of this Note in part only, a new Note or Notes for the
unredeemed or unpurchased portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
At any time and from time to time prior to June 15, 2000, the Company
may, at its option, redeem Notes in an amount in the aggregate up to 30% of the
aggregate principal amount of the Notes originally issued under the Indenture
with the proceeds of one or more Public Equity Offerings by the Company at a
redemption price (expressed as a percentage of principal amount) of 108.75%,
plus accrued and unpaid interest, if any, to the Redemption Date (subject to
the right of Holders on the relevant Record Date to receive interest due on the
relevant Interest Payment Date); provided, however, that at least $122.5
million aggregate principal amount of the Notes must remain outstanding after
each such redemption. In order to effect the foregoing redemption, the Company
must mail notice of redemption no later than 60 days after the related Public
Equity Offering and must consummate such redemption within 90 days of the
closing of the Public Equity Offering.
The Notes do not have the benefit of any mandatory redemption or sinking
fund obligations.
In the event of a Change of Control of the Company, and subject to
certain conditions and limitations provided in the Indenture, the Company will
be obligated to make an offer to purchase, on a Business Day not more than 60
or less than 30 days following the occurrence of a Change of Control of the
Company, all of the then Outstanding Notes at a purchase price equal to 101% of
the principal amount thereof, together with accrued and unpaid interest to the
Change of Control Purchase Date, all as provided in the Indenture.
In the event of Asset Sales, under certain circumstances, the Company
will be obligated to make a Net Proceeds Offer to purchase all or a specified
portion of each Holder's Notes at a purchase price equal to 100% of the
principal amount of the Notes, together with accrued and unpaid interest to the
Net Proceeds Payment Date.
As set forth in the Indenture, an Event of Default is generally (i)
default for 30 days in payment of interest on any of the Notes, (ii) failure to
pay principal (and premium, if any) upon maturity, redemption or otherwise
(including pursuant to a Change of Control Offer or a Net Proceeds Offer),
(iii) default in the performance of agreements relating to mergers,
consolidations and sales of all or substantially all assets or the failure to
make or consummate a Change of Control Offer or a Net Proceeds Offer, (iv)
failure for 30 days after notice to comply with any other covenants in the
Indenture or the Notes, (v) certain payment defaults under, and the
acceleration prior to the maturity of, certain Indebtedness of the Company or
any Restricted Subsidiary in an aggregate principal amount in excess of
$10,000,000, (vi) the failure of any Subsidiary Guarantee to be in full force
and effect or otherwise to be enforceable (except as permitted by the
Indenture), (vii) certain final judgments or orders against the Company or any
Restricted Subsidiary in an
24
<PAGE> 28
aggregate amount of more than $10,000,000 over the coverage under applicable
insurance policies which remain unsatisfied and either become subject to
commencement of enforcement proceedings or remain unstayed for a period of 60
days and (viii) certain events of bankruptcy, insolvency or reorganization of
the Company or any Material Subsidiary. If any Event of Default occurs and is
continuing, the Trustee or the holders of at least 25% in aggregate principal
amount of the Outstanding Notes may declare the principal amount of, premium,
if any, and accrued interest on all the Notes to be due and payable
immediately, except that (i) in the case of an Event of Default arising from
certain events of bankruptcy, insolvency or reorganization of the Company or
any Material Subsidiary, the principal amount of, premium, if any, and accrued
interest on the Notes will become due and payable immediately without further
action or notice, and (ii) in the case of an Event of Default which relates to
certain payment defaults or acceleration with respect to certain Indebtedness,
any Event of Default and any consequential acceleration of the Notes will be
automatically rescinded if any such Indebtedness is repaid or if the default
relating to such Indebtedness is cured or waived and if the holders thereof
have accelerated such Indebtedness then such holders have rescinded their
declaration of acceleration. No Holder may pursue any remedy under the
Indenture unless the Trustee shall have failed to act after notice from such
Holder of an Event of Default and written request by Holders of at least 25% in
aggregate principal amount of the Outstanding Notes, and the offer to the
Trustee of indemnity reasonably satisfactory to it; however, such provision
does not affect the right to sue for enforcement of any overdue payment on a
Note by the Holder thereof. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Outstanding Notes may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except Default in payment of
principal, premium or interest) if it determines in good faith that withholding
the notice is in the interest of the Holders. The Company is required to file
annual and quarterly reports with the Trustee as to the absence or existence of
Defaults.
The Indenture contains provisions for (i) defeasance at any time of the
entire indebtedness of the Company on this Note and (ii) discharge from certain
restrictive covenants and the related Defaults and Events of Default, upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, the Subsidiary Guarantors and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Notes at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount
of the Notes at the time Outstanding, on behalf of the Holders of all the
Notes, to waive compliance by the Company with certain provisions of the
Indenture and certain past Defaults under the Indenture and their consequences.
Any such consent or waiver by or on behalf of the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Note. Without the consent of any Holder, the Company,
the
25
<PAGE> 29
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture or
the Notes to cure any ambiguity, defect or inconsistency, to add or release any
Subsidiary Guarantor pursuant to the Indenture, to provide for uncertificated
Notes in addition to or in place of certificated Notes and to make certain
other specified changes and other changes that do not adversely affect the
interests of any Holder in any material respect.
No reference herein to the Indenture and no provision of this Note 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, on)
and interest on this Note at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture, and subject to certain limitations therein
set forth, the transfer of this Note is registerable on the Security Register
of the Company, upon surrender of this Note for registration of transfer at the
office or agency of the Company maintained for such purpose duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
A director, officer, employee, incorporator, stockholder or Affiliate of
the Company or any Subsidiary Guarantor, as such, past, present or future shall
not have any personal liability under this Note or the Indenture by reason of
his or its status as such director, officer, employee, incorporator,
stockholder or Affiliate, or any liability for any obligations of the Company
or any Subsidiary Guarantor under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each Holder, by accepting this Note with the notation of Subsidiary Guarantee
endorsed hereon, waives and releases all such liability. Such waiver and
release are part of the consideration for the issuance of this Note with the
notation of Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Note for registration of
transfer, the Company, the Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note is
overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor
any agent shall be affected by notice to the contrary.
26
<PAGE> 30
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture. The Company will furnish
to any Holder upon written request and without charge a copy of the Indenture.
Requests may be made to the Company at 777 Main Street, Fort Worth, Texas
76102, Attention: Investor Relations.
Pursuant to a recommendation promulgated by the Committee on Uniform
Note Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Notes as a convenience to the Holders thereof. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identifying information
printed hereon.
Interest on this Note shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
This Note shall be governed by and construed in accordance with the laws
of the State of New York without regard to conflicts of law principles.
Section 2.3 Form of Notation Relating to Subsidiary Guarantees.
The form of notation to be set forth on each Note relating to the
Subsidiary Guarantees shall be in substantially the following form:
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, the initial
Subsidiary Guarantors and, if any, all additional Subsidiary Guarantors (as
defined in the Indenture referred to in the Note upon which this notation is
endorsed and each being hereinafter referred to as a "Subsidiary Guarantor,"
which term includes any additional or successor Subsidiary Guarantor under the
Indenture) have, jointly and severally, unconditionally guaranteed (a) the due
and punctual payment of the principal (and premium, if any) of and interest on
the Notes, whether at maturity, acceleration, redemption or otherwise, (b) the
due and punctual payment of interest on the overdue principal of and interest
on the Notes, if any, to the extent lawful, (c) the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in the Indenture, and (d)
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, the prompt payment in full when due or performance in
accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise.
The obligations of each Subsidiary Guarantor are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor
under its Subsidiary Guarantee or pursuant to its contribution obligations
under the Indenture, result in the obligations of such Subsidiary Guarantor
under the Subsidiary Guarantee not constituting a fraudulent
27
<PAGE> 31
conveyance or fraudulent transfer under federal or state law. Each Subsidiary
Guarantor that makes a payment or distribution under a Subsidiary Guarantee
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor.
The obligations of the Subsidiary Guarantors to the Holders or the
Trustee pursuant to the Subsidiary Guarantees and the Indenture are expressly
subordinate to all Guarantor Senior Indebtedness to the extent set forth in
Article Fifteen of the Indenture and reference is made to such Indenture for
the precise terms of such subordination.
No stockholder, officer, director, employee, incorporator or Affiliate
as such, past, present or future, of any Subsidiary Guarantor shall have any
personal liability under its Subsidiary Guarantee by reason of his or its
status as such stockholder, officer, director, employee, incorporator or
Affiliate, or any liability for any obligations of any Subsidiary Guarantor
under the Notes or the Indenture or for any claim based on, in respect of, or
by reason of such obligations or their creation.
Any Subsidiary Guarantor may be released from its Subsidiary Guarantee
upon the terms and subject to the conditions provided in the Indenture.
All terms used in this notation of Subsidiary Guarantee which are
defined in the Indenture referred to in this Note upon which this notation of
Subsidiary Guarantees is endorsed shall have the meanings assigned to them in
such Indenture.
The Subsidiary Guarantees shall be binding upon the Subsidiary
Guarantors and shall inure to the benefit of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder or the
Trustee respecting the Note upon which the foregoing Subsidiary Guarantees are
noted, the rights and privileges herein conferred upon that party shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof and in the Indenture.
The Subsidiary Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which the
foregoing Subsidiary Guarantees are noted shall have been executed by the
Trustee under the Indenture by the manual signature of one of its authorized
signatories.
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DELMAR PETROLEUM, INC.
MEXICAN FLATS SERVICE COMPANY
SNYDER FLUID TECHNOLOGIES, INC.
SNYDER GAS MARKETING, INC.
SOCO GAS SYSTEMS, INC.
SOCO HOLDINGS, INC.
SOCO LOUISIANA LEASING, INC.
SOCO OFFSHORE, INC.
WESTERN TRANSMISSION CORPORATION
WYOMING GATHERING AND PRODUCTION
COMPANY
By:
----------------------------------
Vice President
ARTICLE III
THE NOTES
Section 3.1 Forms Generally.
The following paragraphs are added to the end of Section 201 of the
Indenture, but only with respect to the Notes issued in accordance with the
provisions hereof:
Notes (including the notations thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication) offered and sold
shall be issued initially in the form of one or more permanent global
Securities substantially in the form set forth in Sections 2.1 through 2.3
hereof and Section 202 of the Original Indenture (the "Global Note") deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
and authenticated by the Trustee as hereinafter provided. Subject to the
limitation set forth in Section 3.2 hereof, the principal amounts of the Global
Notes may be increased or decreased from time to time by adjustments made on
the records of the Trustee as custodian for the Depository, as hereinafter
provided.
Notes (including the notations thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication) offered and sold
other than as described in the preceding paragraph shall be issued in the form
of permanent certificated securities in registered form in substantially the
form set forth in Sections 2.1 through 2.3 hereof and Section 202 of the
Original Indenture ("Physical Notes").
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Section 3.2 Title and Terms.
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture for original issue is limited to $150,000,000.
The aggregate principal amount of Notes Outstanding at any one time may not
exceed such amount except as provided in Section 306 hereof.
The Notes shall be known and designated as the "8 3/4% Senior
Subordinated Notes due 2007, of the Company. Their Stated Maturity shall be
June 15, 2007, and they shall bear interest at the rate of 8.75% per annum from
June 10, 1997, or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, payable semiannually on June 15 and
December 15 in each year, commencing December 15, 1997, and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the Notes
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York; provided, however, that, at the option of the
Company, interest may be paid on Physical Notes by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register.
Section 3.3 Denominations.
The Notes shall be issuable only in registered form without coupons and
only in denominations of $1,000 and any integral multiple thereof.
Section 3.4 Book-Entry Provisions for Global Note. The following
replaces Section 203 of the Indenture, but only with respect to the Notes
issued in accordance with the provisions hereof:
SECTION 203. Book-Entry Provisions for Global Security.
Each Global Note shall be registered in the name of the Depository for
such Global Note or the nominee or such Depository and be delivered to the
Trustee as custodian for such Depository.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under such
Global Note, and the Depository may be treated by the Company, the Subsidiary
Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors, or the Trustee as the absolute owner of such Global Note for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Subsidiary Guarantors, or the Trustee or any agent of
the Company, the Subsidiary Guarantors, or the Trustee from giving effect to
any written certification, proxy or other authorization furnished by the
Depository or shall impair, as between the Depository and its Agent Members,
the operation of customary practices governing the exercise of the rights of a
holder of any Note.
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Transfers of a Global Note shall be limited to transfers of such Global
Note in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in a Global Note may be
transferred or exchanged for Physical Notes in accordance with the rules and
procedures of the Depository; provided, however, Physical Notes shall be
transferred to all beneficial owners in exchange for their beneficial interests
in a Global Note if, and only if, either (i) the Depository notifies the
Company that it is unwilling or unable to continue as depositary for the Global
Note and a successor depositary is not appointed by the Company within 90 days
of such notice or (ii) an Event of Default has occurred and is continuing and
the Note Registrar has received a request from the Depository to issue Physical
Notes in lieu of all or a portion of the Global Note (in which case the Company
shall deliver Physical Notes within 30 days of such request).
In connection with the transfer of an entire Global Note to beneficial
owners pursuant to this Section, the Global Note 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 Depository, in exchange for its beneficial interest in the Global Note,
an equal aggregate principal amount of Physical Notes of authorized
denominations.
The Holder of the Global Note 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 Notes.
ARTICLE IV
DEFAULTS AND REMEDIES
Section 4.1 Events of Default. The following replaces Section 501 of
the Indenture, but only with respect to the Notes issued in accordance with the
provisions hereof:
SECTION 501. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or 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):
(i) default for 30 days in the payment of interest on the Notes; or
(ii) default in the payment of the principal of or premium, if any, on
any of the Notes when the same becomes due and payable, whether such payment is
due at Stated Maturity, upon redemption, upon repurchase pursuant to a Change
of Control Offer or a Net Proceeds Offer, upon acceleration or otherwise; or
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(iii) default in the performance or breach of the provisions of Article
VIII hereof, the failure to make or consummate a Change of Control Offer in
accordance with the provisions of Section 1018 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
1019; or
(iv) failure of the Company or any Subsidiary Guarantor to comply with
any other term, covenant or agreement contained in the Notes, any Subsidiary
Guarantee or this Indenture (other than a default specified in subparagraph
(i), (ii) or (iii) above) for a period of 30 days after written notice of such
failure stating that it is a "notice of default" hereunder and requiring the
Company or such Subsidiary Guarantor, as the case may be, to remedy the same
shall have been given (a) to the Company by the Trustee or (b) to the Company
and the Trustee by the Holders of at least 25 % in aggregate principal amount
of the Notes then Outstanding; or
(v) the occurrence and continuation beyond any applicable grace
period of any default in the payment of the principal of (or premium, if any,
on) or interest on any Indebtedness of the Company (other than the Notes) or
any Restricted Subsidiary for money borrowed when due, or any other default
resulting in acceleration of any Indebtedness of the Company or any Restricted
Subsidiary for money borrowed, provided that the aggregate principal amount of
such Indebtedness shall exceed $10,000,000; or
(vi) any Subsidiary Guarantee shall, for any reason cease to be, or be
asserted by the Company or any Subsidiary Guarantor, as applicable, not to be,
in full force and effect, enforceable in accordance with its terms (except
pursuant to the release or termination of any such Subsidiary Guarantee in
accordance with this Indenture); or
(vii) final judgments or orders rendered against the Company or any
Restricted Subsidiary that are unsatisfied and that require the payment in
money, either individually or in an aggregate amount, that is more than
$10,000,000 over the coverage under applicable insurance policies and either
(a) commencement by any creditor of an enforcement proceeding upon such
judgment (other than a judgment that is stayed by reason of pending appeal or
otherwise) or (b) the occurrence of a 60-day period during which a stay of such
judgment or order, by reason of pending appeal or otherwise, was not in effect;
or
(viii) the entry of a decree or order by a court having jurisdiction in
the premises (a) for relief in respect of the Company or any Material
Subsidiary in an involuntary case or proceeding under the Federal Bankruptcy
Code or any other applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (b) adjudging the Company or any
Material Subsidiary bankrupt or insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company or a
Material Subsidiary under the Federal Bankruptcy Code or any applicable federal
or state law, or appointing under any such law a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Material Subsidiary or of a substantial part of its consolidated
assets, or ordering the winding up or liquidation of its
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affairs, and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(ix) the commencement by the Company or any Material Subsidiary of a
voluntary case or proceeding under the Federal Bankruptcy Code or any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any Material Subsidiary to the
entry of a decree or order for relief in respect thereof in an involuntary case
or proceeding under the Federal Bankruptcy Code or any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by the Company or any Material Subsidiary of a petition or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it under any such law to the filing of any such petition or to
the appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of any of the
Company or any Material Subsidiary or of any substantial part of its
consolidated assets, or the making by it of an assignment for the benefit of
creditors under any such law, or the admission by it in writing of its
inability to pay its debts generally as they become due or the taking of
corporate action by the Company or any Material Subsidiary in furtherance of
any such action.
Section 4.2 Acceleration of Maturity; Rescission and Annulment. The
following replaces Section 502 of the Indenture, but only with respect to the
Notes issued in accordance with the provisions hereof:
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If any Event of Default (other than an Event of Default specified in
Section 501(viii) or (ix) hereof) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Notes then
Outstanding, by written notice to the Company (and to the Trustee if such
notice is given by the Holders), may, and the Trustee upon the request of the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Notes shall, by a notice in writing to the Company, declare all unpaid
principal of, premium, if any, and accrued and unpaid interest on all the Notes
to be due and payable immediately, upon which declaration all amounts payable
in respect of the Notes shall be immediately due and payable. If an Event of
Default specified in Section 501(viii) or (ix) hereof occurs and is continuing,
then the amounts described above shall become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder.
At any time after a declaration of acceleration has been made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in
aggregate principal amount of the Notes Outstanding, by written notice to the
Company, the Subsidiary Guarantors and the Trustee, may rescind and annul such
declaration and its consequences if
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(i) the Company or any Subsidiary Guarantor has paid or deposited
with the Trustee a sum sufficient to pay,
(a) all overdue interest on all Outstanding Notes,
(b) all unpaid principal of (and Premium, if any, on) any
Outstanding Notes which have become due otherwise than by such declaration of
acceleration, including any Notes required to have been purchased on a Change
of Control Date or a Net Proceeds Payment Date pursuant to a Change of Control
Offer or a Net Proceeds Offer, as applicable, and interest on such unpaid
principal at the rate borne by the Notes,
(c) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne by the
Notes (without duplication of any amount paid or deposited pursuant to clauses
(a) and (b) above), and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
(ii) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction as certified to the Trustee by the Company;
and
(iii) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Notes which have become
due solely by such declaration of acceleration, have been cured or waived as
provided in Section 513 hereof.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the foregoing, if an Event of Default specified in
Section 501(v) hereof shall have occurred and be continuing, such Event of
Default and any consequential acceleration shall be automatically rescinded if
the Indebtedness that is the subject of such Event of Default has been repaid,
or if the default relating to such Indebtedness is waived or cured and if such
Indebtedness has been accelerated, then the holders thereof have rescinded
their declaration of acceleration in respect of such Indebtedness (provided, in
each case, that such repayment, waiver, cure or rescission is effected within a
period of 10 days from the continuation of such default beyond the applicable
grace period or the occurrence of such acceleration), and written notice of
such repayment, or cure or waiver and rescission, as the case may be, shall
have been given to the Trustee by the Company and countersigned by the holders
of such Indebtedness or a trustee, fiduciary or agent for such holders or other
evidence satisfactory to the Trustee of such events is provided to the Trustee,
within 30 days after any such acceleration in respect of the Notes, and so long
as such rescission of any such acceleration of the Notes does not conflict with
any judgment or decree as certified to the Trustee by the Company.
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ARTICLE V
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OF OR LEASE
Section 5.1 Consolidation, Merger, Conveyance, Transfer Of or Lease.
The following replaces Article Eight of the Indenture, but only with respect to
the Notes issued in accordance with the provisions hereof:
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, in any single transaction or a series of
related transactions, merge or consolidate with or into any other Person, or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all the Properties of the Company and its Restricted Subsidiaries
on a consolidated basis to any Person or group of Affiliated Persons, and the
Company shall not permit any of its Restricted Subsidiaries to enter into any
such transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, conveyance,
transfer, lease or other disposition of all or substantially all of the
Properties of the Company and its Restricted Subsidiaries on a consolidated
basis to any other Person or group of Affiliated Persons, unless at the time
and after giving affect thereto:
(a) either (i) if the transaction is a merger or consolidation, the
Company shall be the surviving Person of such merger or consolidation, or (ii)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which the Properties of the Company or its
Restricted Subsidiaries, as the case may be, are sold, assigned, conveyed,
transferred, leased or otherwise disposed of (any such surviving Person or
transferee Person being the "Surviving Entity") shall be a corporation
organized and existing under the laws of the United States of America, any
state thereof or the District of Columbia and shall, in either case, expressly
assume by a supplemental indenture to this Indenture executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of the
Company under the Notes and this Indenture, and, in each case, this Indenture
shall remain in full force and effect;
(b) immediately before and immediately after giving effect to such
transaction or series of transactions on a pro forma basis (and treating any
Indebtedness not previously an obligation of the Company or any of its
Restricted Subsidiaries which becomes the obligation of the Company or any of
its Restricted Subsidiaries in connection with or as a result of such
transaction or transactions as having been incurred at the time of such
transaction or transactions), no Default or Event of Default shall have
occurred and be continuing;
(c) except in the case of the consolidation or merger of any
Restricted Subsidiary with or into the Company, immediately after giving effect
to such transaction or transactions on a pro forma basis, the Consolidated Net
Worth of the Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) is at least equal to the Consolidated
Net Worth of the Company immediately before such transaction or transactions;
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(d) except in the case of the consolidation or merger of the Company
with or into a Wholly-owned Restricted Subsidiary or any Restricted Subsidiary
with or into the Company or any Wholly Owned Restricted Subsidiary, immediately
before and immediately after giving effect to such transaction or transactions
on a pro forma basis (on the assumption that the transaction or transactions
occurred on the first day of the period of four full fiscal quarts ending
immediately prior to the consummation of the transaction or transactions, with
the appropriate adjustments with respect to the transaction or transactions
being included in such pro forma calculation), the Company (or the Surviving
Entity if the Company is not the continuing obligor under this Indenture) could
incur $1.00 of Additional Indebtedness (excluding Permitted Indebtedness) under
Section 1014(i) hereof;
(e) if the Company is not the continuing obligor under this
Indenture, then each Subsidiary Guarantor, unless it is the Surviving Entity,
shall have by supplemental indenture confirmed that its Subsidiary Guarantee of
the Notes shall apply to the Surviving Entity's obligations under this
Indenture and the Notes;
(f) if any of the Properties of the Company or any of its Restricted
Subsidiaries would, upon such transaction or series of related transactions,
become subject to any Lien (other than a Permitted Lien), the creation or
imposition of such Lien shall have been in compliance with Section 1017 hereof;
and
(g) The Company (or the Surviving Entity if the Company is not the
continuing obligor under this Indenture) shall have delivered to the Trustee,
in form and substance reasonably satisfactory to the Trustee, (i) an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer,
lease or other disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, comply with this
Indenture and (ii) an Opinion of Counsel stating that the requirements of
Section 801(a) have been satisfied.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with or merger of the Company into
any other corporation or any sale, assignment, lease, conveyance, transfer or
other disposition of all or substantially all of the Properties of the Company
and its Restricted Subsidiaries on a consolidated basis in accordance with
Section 801 hereof, the Surviving Entity 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 Surviving Entity had been named as
the Company herein, and in the event of any such sale, assignment, lease,
conveyance, transfer or other disposition, the Company (which term shall for
this purpose mean the Person named as the "Company" in the first paragraph of
this Indenture or any successor Person which shall theretofore become such in
the manner described in Section 801 hereof), except in the case of a lease,
shall be discharged of all obligations and covenants under this Indenture and
the Notes and the Company may be dissolved and liquidated and such dissolution
and liquidation shall not cause a Change of Control under clause (c) of the
definition thereof to occur unless the merger, or the sale, assignment, lease,
conveyance, transfer or
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other disposition of all or substantially all of the Properties of the Company
and its Restricted Subsidiaries on a consolidated basis to any Person otherwise
results in a Change of Control.
ARTICLE VI
SUPPLEMENTAL INDENTURES
Section 6.1 Additional Provisions Relating to Supplemental Indentures.
The following provisions are hereby added to Section 901 of the Indenture, but
only with respect to the Notes issued in accordance with the provisions hereof:
(9) to secure the Notes pursuant to the requirements of Section 1017
hereof or otherwise; or
(10) to add any Restricted Subsidiary as an additional Subsidiary
Guarantor as provided in Section 1015(i) hereof or to evidence the succession
of another Person to any Subsidiary Guarantor pursuant to Section 1502 hereof
and the assumption by any such successor of the covenants and agreements of
such Subsidiary Guarantor contained herein, in the Notes and in the Subsidiary
Guarantee of such Subsidiary Guarantor; or
(11) to release a Subsidiary Guarantor from its Subsidiary Guarantee
pursuant to Section 1503 hereof; or
(12) to provide for uncertificated Notes in addition to or in place of
certificated Notes; or
(13) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 6.2 Additional Restrictions on Supplemental Indentures. The
following provisions are hereby added to Section 902 of the Indenture, but only
with respect to the Notes issued in accordance with the provisions hereof:
(4) waive any of the provisions with respect to the redemption of the
Notes, except as provided below with respect to Sections 1018 and 1019 hereof;
(5) reduce the rate of or change the time for payment of interest,
including Defaulted Interest, on any Note;
(6) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate,
principal amount of the then Outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
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(7) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of or interest on the Notes;
(8) waive a redemption payment with respect to any Note (other than a
payment required by Section 1018 or Section 1019 hereof); or
(9) make any change in Section 508, 513 or 1008 hereof or in the
foregoing amendment and waiver provisions; or
(10) modify any provisions of this Indenture relating to the relative
ranking of the Notes or the Subsidiary Guarantees in a manner adverse to the
Holders thereof.
Section 6.3 Notice of Supplemental Indentures and Waivers. A new
Section 907 is hereby added to Article Nine of the Indenture, but only with
respect to the Notes issued in accordance with the provisions hereof, as
follows:
SECTION 907. Notice of Supplemental Indentures and Waivers.
Promptly after (i) the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902 hereof or (ii)
a waiver under Section 513 or 1008 hereof becomes effective, the Company shall
give notice thereof to the Holders of each Outstanding Note affected, in the
manner provided for in Section 1008 hereof, setting forth in general terms the
substance of such supplemental indenture or waiver, as the case may be.
Section 6.4 Effect on Senior Indebtedness. A new Section 908 is
hereby added to Article Nine of the Indenture, but only with respect to the
Notes issued in accordance with the provisions hereof, as follows:
SECTION 908. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article Thirteen hereof or the holders of
Guarantor Senior Indebtedness under Sections 1508, 1509, 1510, 1511, 1513,
1514, 1515, 1516 and 1519 hereof unless expressly consented to in writing by or
on behalf of such holders (or by any specified percentage of holders of a class
of Senior Indebtedness or Guarantor Senior Indebtedness, as the case may be,
required to consent thereto pursuant to the terms of the agreement or
instrument creating, evidencing or governing such Senior Indebtedness or
Guarantor Senior Indebtedness as the case may be), in which event such
supplemental indenture shall be binding on all successors and assigns of such
holders and on all persons who become holders (of such Senior Indebtedness or
Guarantor Senior Indebtedness issued after the date of such amendment or
modification.
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ARTICLE VII
COVENANTS
Section 7.1 Existence. The following replaces Section 1004 of the
Indenture, but only with respect to the Notes issued in accordance with the
provisions hereof:
SECTION 1004. Existence.
Except as expressly permitted by Article Eight hereof, Section 1019
hereof or other provisions of this Indenture, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect the
corporate existence, rights (charter and statutory) and franchises of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such existence of its Restricted
Subsidiaries, rights or franchises, if the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries, taken as a whole, and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 7.2 Maintenance of Properties. The following replaces Section
1005 of the Indenture, but only with respect to the Notes issued in accordance
with the provisions hereof:
SECTION 1005. Maintenance of Properties.
The Company shall cause all material Properties owned by the Company or
any Restricted Subsidiary and used or held for use in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and kept
in good condition, repair and working order (ordinary wear and tear excepted),
all as in the judgment of the Company or such Restricted Subsidiary may be
necessary so that its or its Restricted Subsidiary's business may be properly
and advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Company or any Restricted Subsidiary from
discontinuing the maintenance of any of such Properties if such discontinuance
is, in the judgment of the Company or such Restricted Subsidiary, as the case
may be, desirable in the conduct of the business of the Company or such
Restricted Subsidiary and not disadvantageous in any material respect to the
Holders. Notwithstanding the foregoing, nothing contained in this Section 1005
shall limit or impair in any way the right of the Company and its Restricted
Subsidiaries to sell, divest and otherwise to engage in transactions that are
otherwise permitted by this Indenture.
Section 7.3 Statement by Officer as to Default. The following
replaces Section 1007 of the Indenture, but only with respect to the Notes
issued in accordance with the provisions hereof:
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SECTION 1007. Statement by Officers as to Default.
(i) The company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company and within 45 days of the end of
each of the first, second and third quarters of each fiscal year of the
Company, an Officers' Certificate stating that a review of the activities of
the Company and its Restricted Subsidiaries during the preceding fiscal quarter
or fiscal year, as applicable, has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of such Officer's knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and no Default or
Event of Default has occurred and is continuing (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the Company is taking
or proposes to take with respect thereto). Such Officers' Certificate shall
comply with TIA Section 314(a)(4). For purposes of this Section 1007(i), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(ii) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee forthwith upon any of its Officers becoming aware of any
Default or Event of Default an Officers' Certificate specifying such Default or
Event of Default and what action the Company proposes to take with respect
thereto.
Section 7.4 Additional Covenants. New Sections 1010 through 1021 are
hereby added to Article Ten of the Indenture, but only with respect to the
Notes issued in accordance with the provisions hereof.
SECTION 1010. Insurance.
The Company shall at all times keep all of its, and cause its Restricted
Subsidiaries to keep their, Properties which are of an insurable nature inured
with insurers, believed by the Company to be responsible, against loss or
damage to the extent that property of similar character and in a similar
location is usually so insured by corporations similarly situated and owning
like Properties.
The Company or any Restricted Subsidiary may adopt such other plan or
method of protection, in lieu of or supplemental to insurance with insurers,
whether by the establishment of an insurance fund or reserve to be held and
applied to make good losses from casualties, or otherwise, conforming to the
systems of self-insurance maintained by corporations similarly situated and in
a similar location and owning like Properties, as may be determined by the
Board of Directors of the Company or such Restricted Subsidiary.
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SECTION 1011. Provision of Financial Information.
The Company shall file on a timely basis with the Commission, to the
extent such filings are accepted by the Commission and whether or not the
Company has a class of securities registered under the Exchange Act, the annual
reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act.
The Company shall also file with the Trustee (with exhibits), and provide to
each Holder of Notes (without exhibits), without cost to such Holder, copies of
such reports and documents within 30 days after the date on which the Company
files such reports and documents with the Commission or the date on which the
Company would be required to file such reports and documents if the Company
were so required and, if filing such reports and documents with the Commission
is not accepted by the Commission or is prohibited under the Exchange Act, the
Company shall supply at its cost copies of such reports and documents
(including any exhibits thereto) to any Holder of Notes, securities analyst or
prospective purchaser of any Notes promptly upon written request given in
accordance with Section 106 hereof.
SECTION 1012. Limitation on Restricted Payments.
(i) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take the following actions:
(a) declare or pay any dividend or make any distribution of
the Company's Capital Stock (other than dividends or distributions
payable solely in shares of Qualified Capital Stock of the Company or in
options, warrants or other rights to purchase Qualified Capital Stock of
the Company or dividends or distributions payable to the Company or any
Wholly Owned Restricted Subsidiary);
(b) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any Subsidiary or other Affiliate of
the Company (other than Capital Stock owned by the Company or any Wholly
Owned Restricted Subsidiary) or any options, warrants or other rights to
acquire such Capital Stock;
(c) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any scheduled
principal payment, scheduled sinking fund payment or maturity, any Pari
Passu Indebtedness or Subordinated Indebtedness, except (1) pursuant to
a Pari Passu Offer or a Net Proceeds Deficiency pursuant to Section 1019
hereof or (2) upon the occurrence of a Change of Control to the extent
(and only to the extent) required by the indenture or other agreement or
instrument pursuant to which such Pari Passu Indebtedness or
Subordinated Indebtedness was issued, provided that the Company is then
in compliance with its obligations under Section 1018 hereof.
(d) declare or pay any dividend on, or make any distribution
to the holders of, any shares of Capital Stock of any Restricted
Subsidiary (other than to the Company or any of
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its Wholly Owned Restricted Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Restricted Subsidiary or any options, warrants or other rights to
acquire any such Capital Stock (other than with respect to any such
Capital Stock held by the Company or any Wholly Owned Restricted
Subsidiary or the Company); or
(e) make any Investment (other than any Permitted Investment);
(such payments or other actions described in (but not excluded from) clauses
(a) through (e) are collectively referred to as "Restricted Payments"), unless
at the time of and after giving effect to the proposed Restricted Payment (the
amount of any such Restricted Payment, if other than cash, shall be the amount
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) the Company could incur
$1.00 of additional Indebtedness (excluding Permitted Indebtedness) in
accordance with Section 1014(i) hereof and (3) the aggregate amount of all
Restricted Payments declared or made after the date of this First Supplemental
Indenture shall not exceed the sum (without duplication) of the following:
(A) 50% of the aggregate Consolidated Net Income of the
Company accrued on a cumulative basis during the period beginning on the
first day of the month in which this Second Supplemental Indenture is
signed and ending on the last day of the Company's last fiscal quarter
ending prior to the date of such proposed Restricted Payment (or, if
such aggregate Consolidated Net Income shall be a loss, minus 100% of
such loss), plus
(B) the aggregate net cash proceeds received after the date of
this Second Supplemental Indenture by the Company as capital
contributions to the Company (other than from any Restricted
Subsidiary), plus
(C) the aggregate net cash proceeds received after the date of
this Second Supplemental Indenture by the Company from the issuance or
sale (other than to any of its Restricted Subsidiaries) of shares of
Qualified Capital Stock of the Company or any option, warrants or rights
to purchase such shares of Qualified Capital Stock of the Company, plus
(D) the aggregate net cash proceeds received after the date of
this Second Supplemental Indenture by the Company (other than from any
of its Restricted Subsidiaries) upon the exercise of any options,
warrants or rights to purchase shares of Qualified Capital Stock of the
Company, plus
(E) the aggregate net cash proceeds received after the date of
this Second Supplemental Indenture by the Company from the issuance or
sale (other than to any of its Restricted Subsidiaries) of debt
securities or shares of Redeemable Capital Stock that have been
converted into or exchanged for Qualified Capital Stock of the Company,
together with the aggregate cash received by the Company at the time of
such conversion or exchange, plus
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(F) to the extent not otherwise included in the Company's
Consolidated Net Income, the net reduction in Investments in
Unrestricted Subsidiaries resulting from the payments of interest on
Indebtedness, dividends, repayments of loans or advances, or other
transfers of assets, in each case to the Company or a Restricted
Subsidiary after the date of the Supplemental Indenture from any
Unrestricted Subsidiary or from the redesignation of an Unrestricted
Subsidiary (other than Patina or SOCO International) as a Restricted
Subsidiary (in an amount equal to the fair market value of the net
assets of such Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary), not to
exceed in the case of such Unrestricted Subsidiary the total amount of
Investments (other than Permitted Investments) in such Unrestricted
Subsidiary made by the Company and its Restricted Subsidiaries in such
Unrestricted Subsidiary after the date of this Second Supplemental
Indenture, plus
(G) to the extent not otherwise included in the Company's
Consolidated Net Income, an amount equal to (x) the aggregate net
proceeds received by the Company or any Restricted Subsidiary as a
result of the sale (net of all provisions for all taxes payable as a
result of such sale) after the date of the Supplemental Indenture of
securities or assets of Patina or SOCO International or both or (y) the
net reduction in Investments in Unrestricted Subsidiaries resulting from
the redesignation of Patina or SOCO International as a Restricted
Subsidiary (in an amount equal to the fair market value of the net
assets of Patina or SOCO International, as the case may be, at the time
such Unrestricted Subsidiary is designated a Restricted Subsidiary),
plus
(H) $25,000,000.
(ii) Notwithstanding paragraph (a) above, the Company and its
Restricted Subsidiaries may take the following actions so long as (in the case
of clauses (i), (iii), (iv) and (v) below) no Default or Event of Default shall
have occurred and be continuing:
(a) the payment of any dividend on any Capital Stock of the
Company or any Restricted Subsidiary within 60 days after the date of
declaration thereof, if at such declaration date such declaration
complied with the provisions of paragraph (i) above (and such payment
shall be deemed to have been paid on such date of declaration for
purposes of any calculation required by the provisions of paragraph (i)
above);
(b) the payment of any dividend or the making of any
distribution on account of or the repurchase of the Company's Capital
Stock payable solely in shares of Capital Stock of either Patina or SOCO
International (including cash in lieu of fractional shares in an amount
not to exceed the aggregate proceeds from the sale of such fractional
shares) provided that Patina or SOCO International, as the case may be,
is an Unrestricted Subsidiary at the time of such distribution;
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(c) the payment of dividends in an aggregate annual amount not
in excess of (A) $6,200,000 on any shares of 6% Convertible Preferred
Stock of the Company outstanding on the date of this Second Supplemental
Indenture (and on shares of Common Stock of the Company into which the
shares of 6% Convertible Preferred Stock are converted) and (B)
$8,500,000 on shares of the Company's Common Stock, provided that (1)
such dividends are paid within 60 days of the date of declaration
thereof and (2) on the date of declaration and having given pro forma
effect to the making of such payment (x) the Company could incur $1.00
of additional Indebtedness (excluding Permitted Indebtedness) in
accordance with the covenant described under "--Incurrence of
Indebtedness" and (y) the ratio of the Company's Adjusted Consolidated
Net Tangible Assets to total Indebtedness is equal to or greater than
2.0 to 1.0;
(d) the repurchase, redemption or other acquisition or
retirement of any shares of any class of Capital Stock of the Company or
any Restricted Subsidiary, in exchange for, or out of the aggregate net
cash proceeds of, a substantially concurrent issuance and sale (other
than to a Restricted Subsidiary) of shares of Qualified Capital Stock of
the Company;
(e) the repurchase, redemption, repayment, defeasance or other
acquisition or retirement for value of any Pari Passu Indebtedness or
Subordinated Indebtedness (other than Redeemable Capital Stock) in
exchange for or out of the aggregate net cash proceeds of a
substantially concurrent issuance and sale (other than to a Restricted
Subsidiary) of shares of Qualified Capital Stock of the Company;
(f) the purchase, redemption, repayment, defeasance or other
acquisition or retirement for value of Pari Passu Indebtedness or
Subordinated Indebtedness in exchange for, or out of the aggregate net
cash proceeds of, a substantially concurrent incurrence (other than to a
Restricted Subsidiary) of, Pari Passu Indebtedness or Subordinated
Indebtedness so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount (or, if such Pari
Passu Indebtedness or Subordinated Indebtedness being refinanced
provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration thereof, such lesser
amount as of the date of determination) of the Indebtedness being so
purchased, redeemed, repaid, defeased, acquired or retired, plus the
amount of any premium required to be paid in connection with such
refinancing pursuant to the terms of the Indebtedness refinanced or the
amount of any premium reasonably determined by the Company as necessary
to accomplish such refinancing, plus the amount of expenses of the
Company incurred in connection with such refinancing, (B) such new
Indebtedness is pari passu with or subordinated to the Notes at least to
the same extent as such Indebtedness so purchased, redeemed, repaid,
defeased, acquired or retired, (C) such new Indebtedness has an Average
Life to Stated Maturity that is longer than the Average Life to Stated
Maturity of the Notes and such new Indebtedness has a Stated Maturity
for its final scheduled principal payment that is at least 91 days later
than the Stated Maturity for the final scheduled principal payment of
the Notes; and
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(g) the redemption of the Convertible Subordinated Notes out
of the aggregate net cash proceeds of the offering of the Notes.
The actions described in clauses (a), (c), (d) and (e) of this paragraph (ii)
shall be Restricted Payments that shall be permitted to be taken in accordance
with this paragraph (ii) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (3) of paragraph (i), provided
that any dividend paid pursuant to clause (a) and (c) of this paragraph (ii)
shall reduce the amount that would otherwise be available under clause (3) of
paragraph (i) when declared, but not also when subsequently paid pursuant to
such clause (a) or (c), as the case may be), and the actions described in
clauses (b), (f) and (g) of this paragraph (ii) shall be Restricted Payments
that shall be permitted to be taken in accordance with this paragraph and shall
not reduce the amount that would otherwise be available for Restricted Payments
under clause (3) of paragraph (i). Further, the Company or any Restricted
Subsidiary may make a Restricted Payment, if at the time the Company or any
Restricted Subsidiary first incurred a commitment for such Restricted Payment
such Restricted Payment could have been made; provided that all commitments
incurred and outstanding shall be treated as if such commitments were
Restricted Payments expended by the Company or a Restricted Subsidiary at the
time the commitments were incurred, except that commitments incurred and
outstanding which are treated as a Restricted Payment expended by the Company
or a Restricted Subsidiary and which are terminated shall no longer be treated
as a Restricted Payment expended by the Company or a Restricted Subsidiary upon
the termination of such commitment for such purposes; and provided, further,
that at the time such Restricted Payment is made no Default or Event of Default
shall have occurred and be continuing and the Company could incur $1.00 of
additional Indebtedness (excluding Permitted Indebtedness) in accordance with
Section 1014(i) hereof.
(iii) In computing Consolidated Net Income of the Company under
paragraph (a) above, (1) the Company shall use audited financial statements for
the portions of the relevant period for which audited financial statements are
available on the date of determination and unaudited financial statements and
other current financial data based on the books and records of the Company for
the remaining portion of such period and (2) the Company shall be permitted to
rely in good faith on the financial statements and other financial data derived
from the books and records of the Company that are available on the date of
determination. If the Company makes a Restricted Payment which, at the time of
the making of such Restricted Payment would in the good faith determination of
the Company be permitted under the requirements of this Indenture, such
Restricted Payment shall be deemed to have been made in compliance with this
Indenture notwithstanding any subsequent adjustments made in good faith to the
Company's financial statements affecting Consolidated Net Income of the Company
for any period.
SECTION 1013. Limitation on Other Senior Subordinated Indebtedness.
The Company will not (i) incur (as such term is defined in Section
1014(i) hereof), or permit to remain outstanding, any Indebtedness (including
Acquired Indebtedness and Permitted Indebtedness) other than the Notes, that is
subordinated in right of payment to any Senior
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Indebtedness, unless such Indebtedness is also pari passu with, or subordinated
in right of payment to, the Notes pursuant to subordination provisions
substantially similar to those contained in this Indenture, and (ii) permit any
Subsidiary Guarantor to incur, or to permit to remain outstanding, any
Indebtedness (including Acquired Indebtedness and Permitted Indebtedness) other
than such Subsidiary Guarantor's Subsidiary Guaranty, that is subordinated in
right of payment to any Guarantor Senior Indebtedness unless such Indebtedness
is also pari passu with, or subordinated in right of payment to, such
Subsidiary Guarantee pursuant to subordination provisions substantially similar
to those contained in this Indenture.
SECTION 1014. Incurrence of Indebtedness.
(i) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, create, incur, assume, guarantee or otherwise become directly
or indirectly liable for (collectively, "incur") any Indebtedness (including
any Acquired Indebtedness), other than Permitted Indebtedness, unless (a) at
the time of such event and after giving effect thereto on a pro forma basis the
Company's Consolidated Fixed Charge Coverage Ratio for the four full fiscal
quarters immediately preceding such event, taken as one period, would have been
at least equal to 2.5 to 1.0 and (b) no Default or Event of Default shall have
occurred and be continuing at the time such additional Indebtedness is incurred
or would occur as a consequence of the incurrence of the additional
Indebtedness..
(ii) The amount of any guarantees by the Company or any Restricted
Subsidiary of any Indebtedness of the Company or one or more Restricted
Subsidiaries shall not be deemed to be outstanding or incurred for purposes of
this Section 1014 hereof in addition to the amount of Indebtedness which it
guarantees.
SECTION 1015. Limitation on Guarantees of Indebtedness by Restricted
Subsidiaries.
(i) The Company will not permit any Restricted Subsidiary that is not
a Subsidiary Guarantor to guarantee the payment of any Indebtedness of the
Company unless (a) (1) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a Subsidiary
Guarantee of the Notes by such Restricted Subsidiary, which Subsidiary
Guarantee shall be subordinated to Guarantor Senior Indebtedness (but no other
Indebtedness) to the same extent that the Notes are subordinated to Senior
Indebtedness and (2) with respect to any guarantee of Subordinated Indebtedness
by a Restricted Subsidiary, any such guarantee shall be subordinated to such
Restricted Subsidiary's Subsidiary Guarantee at least to the same extent as
such Subordinated Indebtedness is subordinated to the Notes; (b) such
Restricted Subsidiary waives and agrees not in any manner whatsoever to claim
or take the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Subsidiary Guarantee until such time as the obligations guaranteed thereby are
paid in full; and (c) such Restricted Subsidiary shall deliver to the Trustee
an Opinion of Counsel to the effect that such Subsidiary Guarantee has been
duly executed and authorized and constitutes a valid, binding
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and enforceable obligation of such Restricted Subsidiary, except insofar as
enforcement thereof may be limited by bankruptcy, insolvency or similar laws
(including, without limitation, all laws relating to fraudulent transfers) and
except insofar as enforcement thereof is subject to general principles of
equity; provided that this paragraph (i) shall not be applicable to any
guarantee of any Restricted Subsidiary 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 of the Company.
(ii) Notwithstanding the foregoing and the other provisions of this
Indenture, any Subsidiary Guarantee incurred by a Restricted Subsidiary
pursuant to this Section 1015 shall provide by its terms that it shall be
automatically and unconditionally released and discharged upon the terms and
conditions set forth in Section 1503 hereof.
SECTION 1016. Limitation on Issuance and Sale of Capital Stock by Restricted
Subsidiaries.
The Company (i) shall not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (ii) shall not permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary) to own any Capital Stock of any Restricted
Subsidiary, except, in each case, for (a) directors' qualifying shares, (b)
Capital Stock of a Restricted Subsidiary organized in a foreign jurisdiction
required to be issued to, or owned by, the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction
in order for such Restricted Subsidiary to transact business in such foreign
jurisdiction, (c) a sale of all or substantially all the Capital Stock of a
Restricted Subsidiary effected in accordance with Section 1012 and Section 1019
hereof, (d) the issuance of Capital Stock by a Restricted Subsidiary to a
Person other than the Company or a Restricted Subsidiary which issuance was
made in accordance with Section 1012 and Section 1019 hereof and (e) the
Capital Stock of a Restricted Subsidiary owned by a Person at the time such
Restricted Subsidiary became a Restricted Subsidiary or acquired by such Person
in connection with the formation of the Restricted Subsidiary; provided,
however, that any Capital Stock retained by the Company or a Restricted
Subsidiary in the case of clauses (c), (d) or (e) shall be treated as an
Investment for purposes of Section 1012, if the amount of such Capital Stock
represents less than a majority of the Voting Stock of such Restricted
Subsidiary.
SECTION 1017. Limitation on Liens.
The Company shall not and shall not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of
any kind, except for Permitted Liens, upon any of their respective Properties,
whether new owned or acquired after the date of this Second Supplemental
Indenture, or any income or profits therefrom to secure any Pari Passu
Indebtedness or Subordinated Indebtedness, unless prior to or contemporaneously
therewith the Notes are directly secured equally and ratably, provided that (i)
if such secured Indebtedness is Pari Passu Indebtedness. the Lien securing such
Pari Passu Indebtedness shall be subordinate and junior to, or pari passu with,
the Lien securing the Notes and (ii) if such secured Indebtedness is
Subordinated
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Indebtedness, the Lien securing such Subordinated Indebtedness shall be
subordinate. and junior to the lien securing the Notes at least to the same
extent as such Subordinated Indebtedness is subordinated to the Notes.
SECTION 1018. Purchase of Notes Upon Change of Control.
(i) Upon the occurrence of a Change of Control, each Holder of Notes
shall have the right to require the Company to purchase such Holder's Notes, in
whole or in part, in a principal amount that is an integral multiple of $
1,000, pursuant to the offer described in Section 1018(ii) hereof (the "Change
of Control Offer") at a purchase price (the "Change of Control Purchase Price")
in cash equal to 101 % of the aggregate principal amount thereof plus accrued
and unpaid interest, if any, thereon to the date of purchase (the "Change of
Control Purchase Date"). The Company will not be required to make a Change of
Control Offer upon a Change of Control if a third party makes the Change of
Control Offer at the same times and otherwise in substantial compliance with
the requirements applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
(ii) Within 30 calendar days after the date of any Change of Control,
the Company, or the Trustee at the request and expense of the Company, shall
send to each Holder, in the manner provided in Section 107 a notice (the
"Change of Control Notice") prepared by the Company describing the transaction
or transactions that constitute the Change of Control and stating:
(a) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 1018, and that all
Notes that are timely tendered will be accepted for payment;
(b) the Change of Control Purchase Price and the Change of
Control Purchase Date, which date shall be a Business Day no earlier
than 30 calendar days nor later than 60 calendar days subsequent to the
date such notice is mailed;
(c) that any Notes or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(d) that, unless the Company defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Notes or
portions thereof accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest from and after the Change of
Control Purchase Date;
(e) that any Holder electing to have any Notes or portions
thereof purchased pursuant to a Change of Control Offer will be required
to surrender such Notes, with the form to elect purchase by the Company
pursuant to this Section 1018 completed, to the Paying Agent at the
address specified in the notice, prior to the close of business on the
third Business Day preceding the Change of Control Purchase Date;
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(f) that any Holder shall be entitled to withdraw such
election if the Paying Agent receives, not later than the close of
business on the second Business Day preceding the Change of Control
Purchase Date, a facsimile transmission or letter, setting forth the
name of the Holder, the principal amount of Notes delivered for purchase
and a statement that such Holder is withdrawing such Holder's election
to have such Notes or portions thereof purchased pursuant to the Change
of Control Offer;
(g) that any Holder electing to have Notes purchased pursuant
to the Change of Control offer must specify the principal amount that is
being tendered for purchase, which principal amount must be $1,000 or an
integral multiple thereof;
(h) if Physical Notes have been issued pursuant to Section
201, that any Holder of Physical Notes whose Physical Notes are being
purchased only in part will be issued new Physical Notes equal in
principal amount to the unpurchased portion of the Physical Notes
surrendered, which unpurchased portion will be equal in principal amount
to $1,000 or an integral multiple thereof; and
(i) any other information necessary to enable any Holder to
tender Notes and to have such Notes purchased pursuant to this Section
1018.
(iii) On the Change of Control Payment Date, the Company shall (a)
accept for payment all Notes or portions thereof properly tendered pursuant to
the Change of Control Offer, (b) irrevocably deposit with the Paying Agent, by
11:00 a.m., Eastern time on such date, in immediately available funds, an
amount equal to the Change of Control Purchase Price in respect of all Notes or
portions thereof so accepted and (c) deliver or cause to be delivered to the
Trustee the Notes so accepted together with in Officers' Certificate stating
the aggregate principal amount of Notes or portions thereof being purchased by
the Company. The Paying Agent shall promptly send, in the manner provided in
Section 107, to each Holder of Notes or portions thereof so accepted for
payment the Change of Control Purchase Price for such Notes or portions
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment
Date. For purposes of this Section 1018, the Trustee shall act as the Paying
Agent.
(iv) Upon surrender and cancellation of a Physical Note that is
purchased in part pursuant to the Change of Control Offer, the Company shall
promptly issue and the Trustee shall authenticate and deliver to the
surrendering Holder of such Physical Note a new Physical Note equal in
principal amount to the unpurchased portion of such surrendered Physical Note;
provided that each such new Physical Note shall be in a principal amount of
$1,000 or an integral multiple thereof.
(v) The Company shall comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such
laws and regulations are applicable, in the event that a Change of Control
occurs and the Company is required to purchase Notes as described in this
Section 1018. To the extent that the provisions of any securities laws or
regulations
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conflict with the provisions relating to the Change of Control Offer, the
Company will comply with the applicable securities laws and regulations and
will not be deemed to have breached its obligations under this Section 1018 by
virtue thereof.
(vi) Prior to complying with the provisions of this Section 1018, but
in any event within 30 days following a Change of Control, the Company shall
either repay all outstanding Senior Indebtedness or obtain the requisite
consents, if any, under all agreements governing outstanding Senior
Indebtedness to permit the repurchase of Notes required by this Section 1018.
SECTION 1019. Disposition of Proceeds of Asset Sales.
(i) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (a) the Company or such
Restricted Subsidiary, as the case may be, receives consideration at the time
of such Asset Sale at least equal to the Fair Market Value of the Properties
sold or otherwise disposed of pursuant to the Asset Sale (as determined by the
Board of Directors of the Company in the case of Asset Sales greater than
$5,000,000, whose determination shall be conclusive and evidenced by a Board
Resolution), (b) at least 85% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, in respect of such Asset Sale
consists of cash, Cash Equivalents or properties used in the Oil and Gas
Business of the Company and its Restricted Subsidiaries and (c) the Company
delivers to the Trustee an Officers' Certificate, which shall be conclusive,
certifying that such Asset Sale complies with clauses (a) and (b) of this
Section 1019(i). The amount (without duplication) of any Indebtedness (other
than Subordinated Indebtedness or Pari Passu Indebtedness) of the Company or
such Restricted Subsidiary that is expressly assumed by the transferee in such
Asset Sale and with respect to which the Company or such Restricted Subsidiary,
as the case may be, is unconditionally released by the holder of such
Indebtedness, shall be deemed to be cash or Cash Equivalents for purposes of
clause (b) and shall also be deemed to constitute a repayment of, and a
permanent reduction in, the amount of such Indebtedness for purposes of the
next following paragraph.
(ii) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company or such Restricted Subsidiary may, no later than 365 days
after such Asset Sale, either (a) apply all (or any of the Net Cash Proceeds
therefrom to repay Indebtedness (other than Subordinated Indebtedness or Pari
Passu Indebtedness) of the Company or any Restricted Subsidiary, provided, in
each case, that the related loan commitment (if any) is thereby permanently
reduced by the amount of such Indebtedness so repaid, or (b) invest all or any
part of the Net Cash Proceeds thereof in properties and assets that will be
used in the Oil and Gas Business of the Company or its Restricted Subsidiaries,
as the case may be. The amount of such Net Cash Proceeds not applied or
invested as provided in this paragraph (after the periods specified in this
paragraph) shall constitute "Excess Proceeds."
(iii) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000 (the "Trigger Date"), the Company shall make an offer to purchase,
from all Holders of the Notes and holders of any then outstanding Pari Passu
Indebtedness required to be repurchased or repaid on a
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permanent basis in connection with an Asset Sale, an aggregate principal amount
of Notes and any such Pari Passu Indebtedness equal to such Excess Proceeds as
follows:
(a) Not later than the 30th day following the Trigger Date,
the Company shall (1) give to the Trustee in the manner provided in
Section 106 hereof and each Holder of the Notes in the manner provided
in Section 107 hereof, a notice (a "Purchase Notice") offering to
purchase (a "Net Proceeds Offer") from all Holders of the Notes the
maximum principal amount (expressed as a multiple of $1,000) of Notes
that may be purchased out of an amount (the "Payment Amount") equal to
the product of such Excess Proceeds multiplied by a fraction, the
numerator of which is the outstanding principal amount of the Notes and
the denominator of which is the sum of the outstanding principal amount
of the Notes and any such Pari Passu Indebtedness (subject to proration
in the event such amount is less than the aggregate Offered Price (as
hereinafter defined) of all Notes tendered), and (2) to the extent
required by any Pari Passu Indebtedness and provided there is a
permanent reduction in the principal amount of such Pari Passu
Indebtedness, the Company shall make an offer to purchase such Pari
Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari Passu
Indebtedness Amount") equal to the excess of the Excess Proceeds over
the Payment Amount.
(b) The offer price for the Notes shall be payable in cash in
an amount equal to 100% of the aggregate principal amount of the Notes
tendered pursuant to a Net Proceeds Offer, plus accrued and unpaid
interest, if any, to the date such Net Proceeds Offer is consummated
(the "Offered Price"), In accordance with paragraph (iv) of this
Section. To the extent that the aggregate Offered Price of the Notes
tendered pursuant to a Net Proceeds Offer is less than the Payment
Amount relating thereto or the aggregate amount of the Pad Passu.
Indebtedness that is purchased or repaid pursuant to the Pari Passu
Offer is less than the Pari Passu Indebtedness Amount (such shortfall
constituting a "Net Proceeds Deficiency"), the Company may use such Net
Proceeds Deficiency, or a portion thereof, for general corporate
purposes, subject to the limitations of Section 1012 hereof.
(c) If the aggregate Offered Price of Notes validly tendered
and not withdrawn by Holders thereof exceeds the Payment Amount Notes to
be purchased will be selected on a pro rata basis by the Trustee based
on the aggregate principal amount of Notes so tendered. Upon completion
of a Net Proceeds Offer and a Pari Passu Offer, the amount of Excess
Proceeds shall be reset to zero.
(d) The Purchase Notice shall set forth a purchase date (the
"Net Proceeds Payment Date"), which shall be on a Business Day no
earlier than 30 days nor later than 60 days from the Trigger Date. The
Purchase Notice shall also state (1) that a Trigger Date with respect to
one or more Asset Sales has occurred and that such Holder has the right
to require the Company to repurchase such Holder's Notes at the Offered
Price. subject to the limitations described in the forgoing paragraph
(c), (2) any information regarding such Net Proceeds Offer required to
be furnished pursuant to Rule 14e-1 under the Exchange Act and
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any other securities laws and regulations thereunder, (3) that any Note,
or portion thereof, not tendered or accepted for payment will continue
to accrue interest, (4) that, unless the Company defaults in depositing
money with the Paying Agent in accordance with the last paragraph of
clause (iv) of this Section 1019, or payment is otherwise prevented, any
Note, or portion thereof, accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Payment Date, and (5) the instructions a Holder must follow in order to
have his Notes repurchased in accordance with paragraph (iv) of this
Section.
(iv) Holders electing to have Notes purchased will be required to
surrender such Notes to the Paying Agent at the address specified in the
Purchase Notice prior to the close of business on the third Business Days prior
to the Net Proceeds Payment Date. Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the close of business on
the second Business Days prior to the Net Proceeds Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Notes delivered for purchase by the Holder as to which his
election is to be withdrawn and a statement that such Holder is withdrawing his
election to have such Notes purchased. Holders of Physical Notes whose Notes
are purchased only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered, which unpurchased portion
will be equal to $1,000 or an integral multiple thereof.
On the Net Proceeds Payment Date, the Company shall (1) accept for
payment Notes or portions thereof validly tendered pursuant to a Net Proceeds
Offer in an aggregate principal amount equal to the Payment Amount or such
lesser amount of Notes as has been tendered, (2) irrevocably deposit with the
Paying Agent by 11:00 a.m., Eastern time, immediately available funds
sufficient to pay the purchase price of all Notes or portions thereof so
tendered in an aggregate principal amount equal to the Payment Amount or such
lesser amount and (3) deliver or cause to be delivered to the Trustee the Notes
so accepted. The Paying Agent shall promptly send, in the manner provided in
Section 107, to Holders of the Notes so accepted payment in an amount equal to
the purchase price, and the Company shall execute and the Trustee shall
authenticate and mail or make available for delivery to such Holders a new Note
equal in principal amount to any unpurchased portion of the Note which any such
Holder did not surrender for purchase. Any Notes not so accepted will be
promptly mailed or delivered to the Holder thereof. The Company shall announce
the results of a Net Proceeds Offer on or as soon as practicable after the Net
Proceeds Payment Date. For purposes of this Section 1019, the Trustee will act
as the Paying Agent.
(v) The Company shall not permit any Subsidiary to enter into or
suffer to exist any agreement that would place any restriction of any kind
(other than pursuant to law or regulation) on the ability of the Company to
make a Net Proceeds Offer following any Asset Sale. The Company shall comply
with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder, if applicable, in the event that an Asset Sale occurs
and the Company is required to purchase Notes as described in this Section
1019. To the extent that the provisions of any securities laws or regulations
conflict with the provisions relating to the Net Proceeds offer, the Company
will
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comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 1019 by virtue
thereof.
SECTION 1020. Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including. without limitation,
the sale, purchase, exchange or lease of Property or services) with any
Affiliate of the Company (other than the Company or a Restricted Subsidiary)
unless (i) such transaction or series of related transactions is on terms that
are no less favorable to the Company or such Restricted Subsidiary, as the case
may be, than would be available in a comparable transaction in arm's-length
dealings with an unrelated third party, (d) with respect to a transaction or
series of related transactions involving payments in excess of $1,000,000 in
the aggregate, the Company delivers an Officers' Certificate to the Trustee
certifying that such transaction complies with clause (i) above, (iii) with
respect to a transaction or series of transactions involving payments in excess
of $5,000,000 but less than $15,000,000 in the aggregate, the Company delivers
an Officers' Certificate to the Trustee certifying that (a) such transaction or
series of related transactions complies with clause (i) above and (b) such
transaction or series of related transactions shall have been approved by a
majority of the independent directors of the Board of Directors of the Company
and (iv) with respect to a transaction or series of transactions involving
payments of $15,000,000 or more in the aggregate, the Company delivers an
Officers' Certificate to the Trustee certifying that (a) such transaction or
series of related transactions complies with clause (i) above, (b) such
transaction or series of related transactions shall have been approved by a
majority of the Disinterested Directors of the Company and (c) the Company
shall have received the written opinion of a firm of investment bankers
nationally recognized in the United States that such transaction or series of
transactions is fair, from a financial point of view, to the Company or such
Restricted Subsidiary; provided, however, that the foregoing restriction shall
not apply to (1) loans or advances to officers, directors and employees of the
Company or any Restricted Subsidiary made in the ordinary course of business
and consistent with past practices of the Company and its Restricted
Subsidiaries in an aggregate amount not to exceed $3,000,000 outstanding at any
one time, (2) the payment of reasonable and customary regular fees to directors
of the Company or any of its Restricted Subsidiaries who are not employees of
the Company or any Affiliate, (3) the Company's employee compensation and other
benefit arrangements or (4) indemnities of officers and directors of the
Company or any Subsidiary consistent with such Person's charter and bylaws and
applicable statutory provisions..
SECTION 1021. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries.
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (i) pay dividends, in cash or
otherwise, or make any other distributions on or in respect of its Capital
Stock to the Company or any other Restricted Subsidiary, (ii) pay any
Indebtedness owed to the Company
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or any other Restricted Subsidiary, (iii) make an investment in the Company or
any other Restricted Subsidiary, or (iv) transfer any of its Properties to the
Company or any other Restricted Subsidiary, (v) grant liens or security
interests on its properties or assets in favor of the Holders or (vi) guarantee
the Notes or any renewals or refinancings thereof, except for such encumbrances
or restrictions existing as of the date of the Supplemental Indenture, except
in each instance for such encumbrances or restrictions pursuant to (a) this
Indenture, the Bank Credit Facility or any other agreement in effect on the
date of this Indenture, (b) any agreement or other instrument of a Person
acquired by the Company or any Restricted Subsidiary in existence at the time
of such acquisition (but not created in contemplation thereof), which
encumbrance or restriction is not applicable to any other Person, or the
Properties of any other Person, other than the Person, so acquired, (c)
customary restrictions in leases and licenses relating to the Property covered
thereby and entered into in the ordinary course of business or (d) any
agreement that extends, renews, refinances or replaces the agreements
containing restrictions in the foregoing clauses (a) through (c), provided that
the terms and conditions of any such restrictions are not materially less
favorable to the Holders of the Notes than those under or pursuant to the
agreement evidencing the Indebtedness so extended, renewed, refinanced or
replaced, and except with respect to clause (iv) only, (1) restrictions in the
form of Liens which are not prohibited under Section 1017 and which contain
customary limitations on the transfer of collateral and (2) with respect to
clause (d) only, customary restrictions contained in asset sale agreements
limiting the transfer of such assets pending the closing of such sale.
Section 7.5 Waiver of Certain Covenants. Section 1008 of the
Indenture is hereby amended, but only with respect to the Notes issued in
accordance with the provisions hereof, such that the Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 1006 and 1007, Sections 1010 through 1014, Sections 1016 and 1017,
Sections 1020 and 1021 hereof in accordance with the conditions set forth in
Section 1008.
ARTICLE VIII
REDEMPTION OF NOTES
Section 8.1 Right of Redemption.
The Notes may be redeemed, at the election of the Company, as a whole or
from time to time in part, at any time on or after June 15, 2002, upon not less
than 30 or more than 60 days' notice to each Holder of Notes to be redeemed,
subject to the conditions and at the Redemption Prices (expressed as
percentages of principal amount) specified in the form of Note, together with
accrued and unpaid interest, if any, to the Redemption Date. In addition, at
any time and from time to time prior to June 15, 2000, the Company may, at its
option, redeem Notes in an amount in the aggregate up to 30% of the aggregate
principal amount of the Notes originally issued under this Indenture with the
proceeds of one or more Public Equity Offerings by the Company at a redemption
price (expressed as a percentage of principal amount) of 108.75%, plus accrued
and unpaid interest, if any, to the redemption date (subject to the right of
Holders on the relevant record date to receive interest due on the relevant
interest payment date); provided, however, that at least $122.5 million
aggregate
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principal amount of the Notes must remain outstanding after each such
redemption. In order to effect the foregoing redemption, the Company must mail
notice of redemption no later than 60 days after the related Public Equity
Offering and must consummate such redemption within 90 days of the closing of
the Public Equity Offering.
ARTICLE IX
DEFEASANCE AND COVENANT DEFEASANCE
Section 9.1 Defeasance and Discharge. Section 402 of the Indenture is
hereby amended, but only with respect to the Notes issued in accordance with
the provisions hereof, such that clause (b) of Section 402 is deleted and
replaced with the following: "(b) the respective obligations of the Company and
the Subsidiary Guarantors under Sections 303, 304, 305, 306, 307, 508, 515,
607, 610, 611, 1002, 1003, 1501 (to the extent it relates to the foregoing
sections and this Article Four), 1504 and 1505, hereof."
Section 9.2 Covenant Defeasance. Section 403 of the Indenture is
hereby amended, but only with respect to the Notes issued in accordance with
the provisions hereof, such that the first sentence of Section 403 is deleted
and replaced with the following: "Upon the Company's exercise under Section 401
hereof of the option applicable to this Section 403, the Company and the
Subsidiary Guarantors shall be released from their respective obligations under
any covenant contained in Article Eight, Sections 1005 through 1021, and in
Section 402 hereof with respect to the Outstanding Notes on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and the Notes shall thereafter be deemed not to be "Outstanding"
for the purposes of any direction, waiver consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall not be deemed "Outstanding" for all purposes hereunder."
Section 9.3 Conditions to Defeasance or Covenant Defeasance. Section
404(ii) of the Indenture is hereby amended, but only with respect to the Notes
issued in accordance with the provisions hereof, such that Section 404(ii) is
deleted and replaced with the following: "No Default or Event of Default with
respect to the Securities shall have occurred and be continuing on the date of
such deposit or, insofar as Sections 501(viii) and 501(ix) are concerned, at
any time during the period ending on the 91st day after the date of such
deposit.
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ARTICLE X
SUBSIDIARY GUARANTEES
Section 10.1 Subsidiary Guarantees. A new Article Fifteen is hereby
added to the Indenture, but only with respect to the Notes issued in accordance
with the provisions hereof, as follows:
SECTION 1501. Unconditional Guarantee.
Each Subsidiary Guarantor hereby unconditionally, jointly and severally,
guarantees (each such guarantee being referred to herein as this "Subsidiary
Guarantee," with all such guarantees being referred to herein as the
("Subsidiary Guarantees") to each Holder of Notes authenticated and delivered
by the Trustee and to the Trustee and its successors and assigns, the full and
prompt performance of the Company's obligations under this Indenture and the
Notes and that:
(i) the principal of (and premium, if any, on) and interest on the
Notes will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Notes, if any, to the extent lawful, and all other
obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in accordance with
the terms hereof and thereof; and
(ii) in case of any extension of time of payment or renewal of any
Notes or of any such other obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of the extension or renewal,
whether at Stated Maturity by acceleration or otherwise; subject however, in
the case of clauses (i) and (ii) above, to the limitations set forth in Section
1504 hereof.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly
and severally obligated to pay the same immediately. Each Subsidiary Guarantor
hereby agrees that its obligations hereunder shall, to the extent permitted by
law be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a guarantor.
Each Subsidiary Guarantor hereby waves, to the extent permitted by law,
diligence, presentment, demand of payment, filing of claim with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and in this Subsidiary Guarantee. If any Holder or the Trustee is
required by any court or otherwise to return to the Company, any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other
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similar official acting in relation to the Company or any Subsidiary Guarantor,
any amount paid by the Company or any Subsidiary Guarantor to the Trustee or
such Holder, this Subsidiary Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Subsidiary Guarantor agrees
it shall not be entitled to enforce any right of subrogation in relation to the
Holders in respect of any obligations guaranteed, hereby until payment in full
of all obligations guaranteed hereby. Each Subsidiary Guarantor further agrees
that, as between each Subsidiary guarantor, on the one hand, and the Holders
and the Trustee, on the other hand, (a) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (b) in the event of any acceleration of such obligations
as provided in Article Five hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary Guarantor
for the purpose of this Subsidiary Guarantee.
SECTION 1502. Subsidiary Guarantor May Consolidate, etc., on Certain Terms.
(i) Except as set forth in Article Eight hereof, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Subsidiary Guarantor with or into the Company or another Subsidiary
Guarantor or shall prevent any sale, conveyance or other disposition of all or
substantially all the Properties of a Subsidiary Guarantor to the Company or
another Subsidiary Guarantor.
(ii) Except as set forth in Article Eight hereof, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or merger
of a Subsidiary Guarantor with or into a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor), or successive consolidations or mergers in which a Subsidiary
Guarantor or its successor or successors shall be a party or parties, or shall
prevent any sale, conveyance or other disposition of all or substantially all
the Properties of a Subsidiary Guarantor to a Person other than the Company or
another Subsidiary Guarantor (whether or not Affiliated with the Subsidiary
Guarantor) authorized to acquire and operate the same; provided, however, that
(a) immediately after such transaction, and giving effect thereto, no Default
or Event of Default shall have occurred as a result of such transaction and be
continuing, (b) such transaction shall not violate any of the covenants of
Sections 1001 through 1007 and Sections 1009 to 1021 hereof and (c) each
Subsidiary Guarantor hereby covenants and agrees that, upon any such
consolidation, merger, sale, conveyance or other disposition, such Subsidiary
Guarantor's Subsidiary Guarantee set forth in this Article Fifteen and in a
notation to the Notes, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by such
Subsidiary Guarantor, shall be expressly assumed (in the event that the
Subsidiary Guarantor is not the surviving corporation in a merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by such Person formed by such consolidation or into
which the Subsidiary Guarantor shall have merged, or by the Person that shall
have acquired such Property (except to the extent the following Section 1503
would result in the release of such Subsidiary Guarantee, in which case such
surviving Person or transferee of such Property shall not have to execute any
such
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supplemental indenture and shall not have to assume such Subsidiary Guarantor's
Subsidiary Guarantee). In the case of any such consolidation, merger, sale,
conveyance or other disposition and upon the assumption by the successor
Person, by supplemental indenture executed and delivered to the Trustee and
satisfactory in form, to the Trustee of the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Subsidiary Guarantor, such successor Person shall succeed to and be substituted
for the Subsidiary Guarantor with the same effect as if it had been named
herein as the initial Subsidiary Guarantor.
SECTION 1503. Release of Subsidiary Guarantors.
Upon the sale or disposition (by merger or otherwise) of a Subsidiary
Guarantor (or all or substantially all of its Properties) to a Person other
than the Company or another Subsidiary Guarantor and pursuant to a transaction
that is otherwise in compliance with the terms of this Indenture, including but
not limited to the provisions of Section 1502 hereof or pursuant to Article
Eight hereof, such Subsidiary Guarantor shall be deemed released from its
Subsidiary Guarantee and all related obligations under this Indenture;
provided, however, that any such termination shall occur only to the extent
that all obligations of such Subsidiary Guarantor under all of its guarantees
of, and under all of its pledges of assets or other security interests which
secure, other Indebtedness of the Company or any other Restricted Subsidiary
shall also terminate upon such sale or other disposition. The Trustee shall
deliver an appropriate instrument evidencing such release upon receipt of a
Company Request accompanied by an Officers' Certificate and an Opinion of
Counsel certifying that such sale or other disposition was made by the Company
in accordance with the provisions of this Indenture.
Each Subsidiary Guarantor that is designated as an Unrestricted
Subsidiary in accordance with the provisions of this Indenture shall be
released from its Subsidiary Guarantee and all related obligations under this
Indenture for so long as it remains an Unrestricted Subsidiary. The Trustee
shall deliver an appropriate instrument evidencing such release upon its
receipt of the Board Resolution designating such Unrestricted Subsidiary.
Notwithstanding any other provision of this Indenture, all of the
Subsidiary Guarantors shall be deemed released from their respective Subsidiary
Guarantees and all related obligations under this Indenture in the event that
all obligations of the Subsidiary Guarantors under all of their guarantees of,
and under all of their pledges of assets or other security interests which
secure, other indebtedness of the Company (excluding any Senior Indebtedness)
shall also terminate. The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a Company Request accompanied by an
Officer's Certificate and Opinion of Counsel certifying that all such
obligations of the Subsidiary Guarantee have terminated.
Any Subsidiary Guarantor not released in accordance with this Section
1503 shall remain liable for the full amount of principal of (and premium, if
any, on) and interest on the Notes as provided in this Article Fifteen.
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SECTION 1504. Limitation of Subsidiary Guarantors' Liability.
Each Subsidiary Guarantor, and by its acceptance hereof each Holder,
hereby confirm that it is the intention of all such parties that the guarantee
by such Subsidiary Guarantor pursuant to its Subsidiary Guarantee not
constitute a fraudulent transfer or conveyance for purposes of the Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law. To effectuate the foregoing
intention, the Holders and each Subsidiary Guarantor hereby irrevocably agree
that the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee shall be limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities (including, but not limited to,
Guarantor Senior Indebtedness) of such Subsidiary Guarantor and after giving
effect to any collections from or payments made by or on behalf of any other
Subsidiary Guarantor in respect of the obligations of such other Subsidiary
Guarantor under its Subsidiary Guarantee or pursuant to Section 1505 hereof,
result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting such a fraudulent conveyance or fraudulent transfer.
This Section 1504 is for the benefit of the creditors of each Subsidiary
Guarantor.
SECTION 1505. Contribution.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor (if
any) in a pro rata amount based on the Adjusted Net Assets of each Subsidiary
Guarantor (including the Funding Guarantor) for all payments, damages and
expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Notes or any other Subsidiary Guarantor's
obligations with respect to its Subsidiary Guarantee.
SECTION 1506. Execution and Delivery of Notations of Subsidiary Guarantees.
To evidence its Subsidiary Guarantee set forth in Section 1501 hereof,
each Subsidiary Guarantor hereby agrees to execute the notations of Subsidiary
Guarantees in substantially the form set forth in Section 2.3 hereof to be
endorsed on all Notes ordered to be authenticated and delivered by the Trustee,
and each Subsidiary Guarantor agrees that this Indenture shall be executed on
behalf of such Subsidiary Guarantor by its President or one of its Vice
Presidents. Each Subsidiary Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 1501 hereof shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee. Each such notation of Subsidiary Guarantee shall be
signed on behalf of each Subsidiary Guarantor by its President or one of its
Vice Presidents (each of whom shall, in each case, have been duly authorized by
all requisite corporate action) prior to the authentication of the Note on
which it is endorsed, and the delivery of such Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of such Subsidiary
Guarantor. Such signatures upon the notation of Subsidiary Guarantee
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may be by manual or facsimile signature of such officers and may be imprinted
or otherwise reproduced on the Subsidiary Guarantee, and in case any such
officer who shall have signed the notation of Subsidiary Guarantee shall cease
to be such officer before the Note on which such notation of Subsidiary
Guarantee is endorsed shall have been authenticated and delivered by the
Trustee or disposed of by the Company, such Note nevertheless may be
authenticated and delivered or disposed of as though the Person who signed the
notation of Subsidiary Guarantee had not ceased to be such officer of the
Subsidiary Guarantor.
SECTION 1507. Severability.
In case any provision of this Subsidiary Guarantee shall be invalid,
illegal or unenforceable, that portion of such provision that is not invalid,
illegal or unenforceable shall remain in effect, and the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 1508. Subsidiary Guarantees Subordinated to Guarantor Senior
Indebtedness.
Each Subsidiary Guarantor covenants and agrees, and each Holder of a
Note, by his acceptance of the Subsidiary Guarantees, likewise covenants and
agrees, for the benefit of the holders, from time to time, of Guarantor Senior
Indebtedness, that the payments by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee are subordinated and subject in right of payment, to the
extent and in the manner provided in this Article Fifteen, to the prior payment
in full of all Guarantor Senior Indebtedness of such Subsidiary Guarantor,
whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed; provided, however, that the Subsidiary
Guarantee of such Subsidiary Guarantor, the Indebtedness represented thereby
and the payment of the principal of (and premium, if any, on) and the interest
on the Notes pursuant to such Subsidiary Guarantee in all respects shall rank
pari passu with, or prior to, all existing and future unsecured indebtedness
(including, without limitation, Indebtedness) of such Subsidiary Guarantor that
is subordinated to its Guarantor Senior Indebtedness.
This Article Fifteen shall constitute a continuing offer to all Persons
who, in reliance upon such provisions, become holders of, or continue to hold,
Guarantor Senior Indebtedness, and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness, and such holders are made
obligees hereunder and any of them may enforce such provisions.
SECTION 1509. Subsidiary Guarantors Not to Make Payments with Respect to
Subsidiary Guarantees in Certain Circumstances.
(i) No payment or distribution of any Property of any Subsidiary
Guarantor of any kind or character (other than Permitted Guarantor Junior
Notes) may be made by such Subsidiary Guarantor in respect of its Subsidiary
Guarantee upon the happening of any default in respect of the payment or
required prepayment of any of its Guarantor Senior Indebtedness when the same
becomes due and payable (a "Subsidiary Guarantor Payment Default"), unless and
until such
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Subsidiary Guarantor Payment Default shall have been cured or waived in writing
or shall have ceased to exist or such Guarantor Senior Indebtedness shall have
been paid in full or otherwise discharged, after which such Subsidiary
Guarantor shall resume making any and all required payments in respect of its
Subsidiary Guarantee, including any missed payments.
(ii) Upon the happening of any event (other than a Subsidiary
Guarantor Payment Default) the occurrence of which entitles one or more Persons
to accelerate the maturity of any Specified Guarantor Senior Indebtedness (a
"Subsidiary Guarantor Non-payment Default"), and receipt by the applicable
Subsidiary Guarantor and the Trustee of written notice thereof from one or more
of the holders of such Specified Guarantor Senior Indebtedness or their
representative (a "Subsidiary Guarantor Payment Notice"), then, unless and
until such Subsidiary Guarantor Nonpayment Default shall have been cured or
waived in writing or shall have ceased to exist or such Specified Guarantor
Senior Indebtedness is paid in full or otherwise discharged or the holders (or
a representative of the holders) of such Specified Guarantor Senior
Indebtedness give their written approval, no payment or distribution shall be
made by such Subsidiary Guarantor in respect of its Subsidiary Guarantee (other
than Permitted Guarantor Junior Notes); provided, however, that these
provisions will not prevent the making of any payment for more than 179 days
after a Subsidiary Guarantor Payment Notice shall have been given after which
such Subsidiary Guarantor will resume, (unless otherwise prohibited pursuant
to the immediately preceding paragraph) making any and all required payments in
respect of its Subsidiary Guarantee, including any missed payments.
Notwithstanding the foregoing, not more than one Subsidiary Guarantor Payment
Notice shall be given with respect to any Subsidiary Guarantee within a period
of 360 consecutive days. No Subsidiary Guarantor Non-payment Default that
existed or was continuing on the date of delivery of any Subsidiary Guarantor
Payment Notice with respect to the Specified Guarantor Senior Indebtedness
initiating such Subsidiary Guarantor Payment Notice will be, or can be, made
the basis for the commencement of a subsequent Subsidiary Guarantor Payment
Notice with respect to such Subsidiary Guarantee.
(iii) In the event that, notwithstanding the foregoing, a Subsidiary
Guarantor shall make any payment in respect of its Subsidiary Guarantee to the
Trustee or the Holder of any Note prohibited by the foregoing provisions of
this Section 1509, then and in such event such payment shall be paid over and
delivered forthwith to the Company. In the event that a Subsidiary Guarantor
shall make any payment in respect of its Subsidiary Guarantee to the Trustee,
and the Trustee shall receive written notice of a Subsidiary Guarantor Payment
Default or a Subsidiary Guarantor Nonpayment Default from one or more of the
holders of Guarantor Senior Indebtedness; (or their representative) prior to
making any payment to Holders in respect of the Subsidiary Guarantee and prior
to 11:00 a.m., Eastern Time on the date which is two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose, such payments shall be paid over by the Trustee and delivered
forthwith to the Company. Each Subsidiary Guarantor shall give prompt written
notice to the Trustee of any default under any of its Guarantor Senior
Indebtedness or under any agreement pursuant to which its Guarantor Senior
Indebtedness may have been issued.
61
<PAGE> 65
SECTION 1510. Subsidiary Guarantees subordinated to prior payment of all
guarantor senior indebtedness upon Dissolution, etc.
Upon any distribution of Properties of any Subsidiary Guarantor or
payment on behalf of a Subsidiary Guarantor in the event of any Insolvency or
Liquidation Proceeding with respect to such Subsidiary Guarantor:
(i) the holders of such Subsidiary Guarantor's Guarantor Senior
Indebtedness shall be entitled to reserve payment in full of such Guarantor
Senior Indebtedness, or provision must be made for such payment, before the
Holders are entitled to receive any direct or indirect payment or distribution
of any kind or character, whether in cash, property or securities (other than
Permitted Guarantor Junior Notes), on account of any payment in respect of such
Subsidiary Guarantor's Subsidiary Guarantee;
(ii) any direct or indirect payment or distribution of Properties of
such Subsidiary Guarantor of any kind or character, whether in cash, property
or securities (other than a payment or distribution in the form of Permitted
Guarantor Junior Notes) by set-off or otherwise, to which the Holders or the
Trustee, on behalf of the Holders, would be entitled except for the provisions
of this Article Fifteen, shall be paid by the Subsidiary Guarantor or by any
liquidating trustee or agent or other Person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of such Guarantor Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Guarantor Indebtedness may have been issued, ratably according to the
aggregate amounts remaining unpaid on account of such Senior Guarantor
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all such Guarantor Senior Indebtedness after giving effect
to any concurrent payment or distribution to the holders of such Guarantor
Senior Indebtedness, and
(iii) in the event that, notwithstanding the foregoing provisions of
this Section 1510, any direct or indirect payment or distribution of Properties
of such Subsidiary Guarantor of any kind or character, whether in cash,
property or securities (other than a payment or distribution in the form of
Permitted Guarantor Junior Notes), shall be received by the Trustee or the
Holders before all such Guarantor Senior Indebtedness is paid in full or
otherwise discharged, such Properties shall be received and held in trust for
and shall be paid over to the holders of such Guarantor Senior Indebtedness
remaining unpaid or their representatives, for application to the payment of
such Guarantor Senior Indebtedness until all such Guarantor Senior Indebtedness
shall have been paid or provided for in full, after giving effect to any
concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness.
The Company or a Subsidiary Guarantor shall give prompt written notice
to the Trustee of the occurrence of any Insolvency or Liquidation Proceeding
with respect to such Subsidiary Guarantor.
62
<PAGE> 66
SECTION 1511. Holders to be Subrogated to Rights of Holders of Guarantor
Senior Indebtedness.
After the payment in full of all Guarantor Senior Indebtedness of a
Subsidiary Guarantor, the Holders shall be subrogated (equally and ratably with
the holders of all other Indebtedness of such Subsidiary Guarantor which by its
express terms is subordinated to such Guarantor Senior Indebtedness to
substantially the same extent as each Subsidiary Guarantee is so subordinated
and which is entitled to the rights of subrogation as a result of payments made
to the holders of such Guarantor Senior Indebtedness) to the rights of the
holders of such Guarantor Senior Indebtedness to receive payments or
distributions of cash, property and securities of such Subsidiary Guarantor
applicable to such Guarantor Senior Indebtedness until all amounts owing on the
Notes shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of such Guarantor Senior Indebtedness
by or on behalf of such Subsidiary Guarantor or by or on behalf of the Holders
by virtue of this Article Fifteen which otherwise would have been made to the
Holders shall, as between such Subsidiary Guarantor, its creditors other than
the holders of Guarantor Senior Indebtedness, and the Holders of the Notes, be
deemed to be a payment or distribution by such Subsidiary Guarantor to or on
amount of such Guarantor Senior Indebtedness, it being understood that the
subordination provisions of this Article Fifteen are, and are intended solely
for, the purpose of defining the relative rights of the Holders, on the one
hand, and the holders of Guarantor Senior Indebtedness, on the other hand.
SECTION 1512. Obligations of Subsidiary Unconditional.
Nothing contained in this Article Fifteen or elsewhere in this Indenture
or in any Note is intended to or shall impair, as between the Subsidiary
Guarantors and the Holders, the obligation of the Subsidiary Guarantors under
the Subsidiary Guarantees, or is intended to or shall affect the relative
rights of the Holders and creditors of the Subsidiary Guarantors, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising
all remedies otherwise permitted by applicable law upon Default under this
Indenture, subject to the rights, if any, under this Article XIII of the
holders of Guarantor Senior Indebtedness in respect of cash, property or
securities of any Subsidiary Guarantor received upon the exercise of any such
remedy. Upon any distribution of Properties of a Subsidiary Guarantor referred
to in this Article Fifteen, the Trustee, subject to the provisions of Section
603 hereof, and the Holders of the Notes shall be entitled to rely upon any
order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of a trustee in bankruptcy, receivers, liquidating trustee,
custodian, assignee for the benefit of creditors, or agent or other Person
making any distribution to the Trustee or to the Holders of the Notes for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the related Guarantor Senior Indebtedness and
other indebtedness of such Subsidiary Guarantor, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fifteen.
63
<PAGE> 67
SECTION 1513. Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee, unless it shall have received at its Corporate Trust Office
written notice thereof from a Subsidiary Guarantor or from one or more holders
of Guarantor Senior Indebtedness or Specified Guarantor Senior Indebtedness, in
the case of a Subsidiary Guarantor Non-payment Default, or from any
representative thereof, and, prior to the receipt of any such written notice,
the Trustee, subject to TIA Sections 315(a) through 315(d), shall be entitled
to assume conclusively that no such facts exist. The Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Guarantor Senior Indebtedness, or Specified Guarantor
Senior Indebtedness, in the case of a Subsidiary Guarantor Non-payment Default
(or a representative on behalf of such holder), to establish that such notice
has been given by a holder of Guarantor Senior Indebtedness or Specified
Guarantor Senior Indebtedness, in the case of a Subsidiary Guarantor Non-
payment Default, or a representative on behalf of any such holder or holders.
SECTION 1514. Application by Trustee of Money Deposited with it.
Except as provided in Article Thirteen, any deposit of money by a
Subsidiary Guarantor with the Trustee or any Paying Agent (whether or not in
trust) for any payment in respect of the related Subsidiary Guarantee shall be
subject to the provisions of Sections 1508, 1509, 1510 and 1511 hereof except
that, if prior to 11:00 a.m., Eastern time, on the date which is two Business
Days prior to the date on which by the terms of this Indenture any such money
may become payable for any purpose, the Trustee or, in the case of any such
deposit of money with a Paying Agent, the Paying Agent shall not have received
with respect to such money the notice provided for in Section 1513 hereof, then
the Trustee or such Paying Agent, as the case may be, shall have full power and
authority to receive such money and to apply the same to the purpose for which
it was received, and shall not be affected by any notice to the contrary which
may be received by it on or after 11:00 a.m., Eastern time, two Business Days
prior to such payment date. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Guarantor Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Guarantor Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such Person under this Article
Fifteen, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payments.
The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Guarantor Senior Indebtedness but shall have only such
obligations to such holders as are expressly set forth in this Article Fifteen.
64
<PAGE> 68
SECTION 1515. Subordination Rights Not Impaired by Acts or Omissions of
Subsidiary Guarantors or Holders of Guarantor Senior Indebtedness.
No right of any present or future holders of any Guarantor Senior
Indebtedness of a Subsidiary Guarantor to enforce subordination as provided
herein shall at any time in any way be prejudiced or impaired by any act or any
act or failure to act on the part of such Subsidiary Guarantor or by any act or
failure to act by any such holder, or by any noncompliance by such Subsidiary
Guarantor with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the preceding paragraph of
this Section, the holders of Guarantor Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or the
Holders of the Notes, without incurring responsibility to the Holders of the
Notes and without impairing or releasing the subordination or other benefits
provided in this Article, or the obligations hereunder of the Holders of the
Notes to the holders of Guarantor Senior Indebtedness, do any one or more of
the following: (1) change the manner, place or terms of payment or extend the
time of payment of, or renew, exchange, amend, increase or alter, Guarantor
Senior Indebtedness or the term of any instrument evidencing the same or any
agreement under which Guarantor Senior Indebtedness is outstanding or any
liability of any obligor thereon (unless such change, extension or alteration
results in such Indebtedness no longer being Guarantor Senior Indebtedness as
defined in this Indenture); (2) sell, exchange. release or otherwise deal with
any Property pledged, mortgaged or otherwise securing Guarantor Senior
Indebtedness; (3) settle or compromise any Guarantor Senior Indebtedness or any
liability of any Obligor thereon or release any Person liable in any manner for
the collection of Guarantor Senior Indebtedness; and (4) exercise or refrain
from exercising any rights against the Company and any other Person.
SECTION 1516. Holders Authorize Trustee to Effectuate Subordination of
Subsidiary Guarantees.
Each Holder, by his acceptance thereof, authorizes and expressly directs
the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee as his attorney-in-fact for such purpose, including,
in the event of any Insolvency or Liquidation Proceeding with respect to any
Subsidiary Guarantor, the immediate filing of a claim for the unpaid balance of
his Notes pursuant to the related Subsidiary Guarantee in the form required in
said proceedings and the causing of said claim to be approved.
SECTION 1517. Right of Trustee to Hold Guarantor Senior Indebtedness.
The Trustee shall be entitled to all of the rights set forth in this
Article Fifteen in respect of any Guarantor Senior Indebtedness at any time
held by it to the same extent as any other holder of Guarantor Senior
Indebtedness, and nothing in this Indenture shall be construed to deprive the
Trustee of any of its rights as such holder.
65
<PAGE> 69
SECTION 1518. Article XIII Not to Prevent Events of Default.
The failure to make a payment on account of the Subsidiary Guarantees by
reason of any provision in this Article Fifteen shall not be construed as
preventing the occurrence of an Event of Default under this Indenture.
SECTION 1519. Payment.
For purposes of this Article Fifteen, a payment with respect to any
Subsidiary Guarantor or with respect to principal of or interest on the Note or
any Subsidiary Guarantee shall include, without limitation, payment of
principal of and interest on any Note, any depositing of funds under Article
Four hereof, any payment on account of any repurchase or redemption of any Note
and any payment or recovery on any claim (whether for rescission or damages and
whether based on contract, tort, duty imposed by law, or any other theory of
liability) relating to or arising out of the offer, sale or purchase of any
Note.
66
<PAGE> 70
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
ISSUER
SNYDER OIL CORPORATION,
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President - Finance
SUBSIDIARY GUARANTORS:
DELMAR PETROLEUM, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
MEXICAN FLATS SERVICE COMPANY
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
SNYDER FLUID TECHNOLOGIES, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
67
<PAGE> 71
SNYDER GAS MARKETING, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
SOCO GAS SYSTEMS, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
SOCO HOLDINGS, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
SOCO LOUISIANA LEASING, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
SOCO OFFSHORE, INC.
By: /s/ James H. Shonsey
------------------------------
James H. Shonsey
Vice President
68
<PAGE> 72
WESTERN TRANSMISSION CORPORATION
By: /s/ James H. Shonsey
-------------------------------
James H. Shonsey
Vice President
WYOMING GATHERING AND PRODUCTION
COMPANY
By: /s/ James H. Shonsey
-------------------------------
James H. Shonsey
Vice President
TRUSTEE:
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION
By: /s/ John G. Jones
-------------------------------
Name: John G. Jones
----------------------
Title: Senior Trust Officer
---------------------
69
<PAGE> 1
EXHIBIT 5.1
[SOCO LETTERHEAD]
June 10, 1997
Snyder Oil Corporation
777 Main Street, Suite 2500
Fort Worth, Texas 76102
Re: Registration Statements on Form S-3
Registration Nos. 33-54809 and 333-27363
Ladies and Gentlemen:
As Vice President/General Counsel of Snyder Oil Corporation, a Delaware
corporation (the "Company"), I have acted as counsel to the Company in
connection with the preparation and filing of the Company's Registration
Statements on Form S-3 (Registration Nos. 33-54809 and 333-27363)
(collectively, the "Registration Statement") filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
relating to the Company's offering of up to an aggregate of $175,000,000
principal amount of 8?% Senior Subordinated Notes due 2007 of the Company (the
"Notes"). Capitalized terms used and not defined herein have the meanings
respectively ascribed to them in the Prospectus or Prospectus Supplement
(collectively, the "Prospectus") that are included as part of the Registration
Statement.
In connection with the opinions expressed below, I have examined such
documents, corporate records and other writings as I have deemed necessary to
enable me to express the opinions set forth herein. In such examination I have
assumed the genuineness of all original documents and the conformity to
original documents of all copies submitted to me.
Based on the foregoing, it is my opinion that:
1. Upon the due execution and delivery of the Indenture and the
due execution, authentication and delivery of the Notes in accordance with the
terms and in the manner described in the Registration Statement, the Notes will
be validly issued and will constitute binding obligations of the Company,
enforceable against the Company in accordance with their terms, except to the
extent that such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally and by general equitable principles limiting the availability of
specific performance.
2. Upon the due execution and delivery of the Indenture and the
due execution and delivery of the Subsidiary Guarantees in accordance with the
terms and in the manner described in the Registration Statement, each
Subsidiary Guarantee will be validly issued and will constitute the binding
obligation of the Subsidiary Guarantor executing and delivering such Subsidiary
Guarantee, enforceable against such Subsidiary Guarantor in accordance with its
terms, except to the extent that such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
<PAGE> 2
Snyder Oil Company
June 10, 1997
Page 2
laws affecting creditors' rights generally and by general equitable principles
limiting the availability of specific performance.
This opinion is limited to the substantive laws of the States of Texas
and New York, the General Corporation Law of the State of Delaware and the
applicable federal laws of the United States. I express no opinion as to any
matter other than as expressly set forth above, and no opinion on any other
matter may be inferred herefrom. This opinion is given as of the date hereof,
and I undertake no, and hereby disclaim any, obligation to advise you of any
change in any matter set forth herein.
I hereby consent to the filing of this opinion as an exhibit to the
Current Report on Form 8-K filed by the Company in connection with the offering
of the Notes, to the incorporation by reference of this opinion into the
Company's Registration Statements on Form S-3 (Registration Nos. 33-54809 and
333-27363) and to the use of my name under the caption "Legal Matters" in the
Prospectus. In giving such consent, I do not admit that I come within the
category of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ PETER E. LORENZEN
-------------------------------
Peter E. Lorenzen,
Vice President--General Counsel
<PAGE> 1
EXHIBIT 25.1
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------
F O R M T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
----------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)____.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
ORGANIZED UNDER THE LAWS OF 75-1992896
THE UNITED STATES OF AMERICA (I.R.S. employer
(State of incorporation identification no.)
if not a National Bank)
P.O. BOX 2320 75221-2320
DALLAS, TEXAS (Zip Code)
(Address of principal executive offices)
LEE BOOCKER
TEXAS COMMERCE BANK N A
600 TRAVIS
HOUSTON, TEXAS 77002
(713) 216-2448
(Name, address and telephone
number of agent for service)
----------------------------------------
SNYDER OIL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 75-2306158
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
777 MAIN STREET, SUITE 2500
FORT WOTHE, TEXAS 76102
(Address of principal executive offices) (Zip Code)
SENIOR SUBORDINATED NOTES, DUE 2007
(Title of the indenture securities)
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
<TABLE>
<CAPTION>
NAME ADDRESS
------------------------------------------------------------
<S> <C>
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank Dallas, Texas
Federal Deposit Insurance Corporation Washington, D.C.
National Bank Examiners Dallas, Texas
</TABLE>
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of
eligibility:
Exhibit 1. A copy of the Articles of Association of the
Trustee as now in effect.
Exhibit 2. A copy of the certificate of authority of the
Trustee to commence business.
Exhibit 3. A copy of the authorization of the Trustee to
exercise corporate trust powers.
Exhibit 4. A copy of the existing bylaws of the Trustee.
Exhibit 5. Not Applicable.
Exhibit 6. The consents of the United States
institutional trustees required by Section
321(b) of the Trust Indenture Act of 1939.
Exhibit 7. A copy of the latest report of condition of
the Trustee published pursuant to law or the
requirements of its supervising or examining
authority.
Exhibit 8. Not Applicable.
Exhibit 9. Not Applicable.
The answer to Item 2 is based in part on information provided or
confirmed by the obligor. The accuracy and completeness of such information is
hereby disclaimed by the Trustee.
2
<PAGE> 3
Exhibit 1. Incorporated by reference to exhibit bearing
the same designation and previously filed
with the Securities and Exchange Commission
as exhibit to File No. 33-51417.
Exhibit 2 Incorporated by reference to exhibit bearing
the same designation and previously filed
with the Securities and Exchange Commission
as exhibit to File No. 2-24599.
Exhibit 3. Incorporated by reference to exhibit bearing
the same designation and previously filed
with the Securities and Exchange Commission
as exhibit to File No. 2-24599.
Exhibit 4. Incorporated by reference to exhibit bearing
the same designation and previously filed
with the Securities and Exchange Commission
as exhibit to File No.33-99316.
Exhibit 6. Incorporated herewith.
Exhibit 7. Incorporated by reference to exhibit bearing
the same designation and previously filed
with the Securities and Exchange Commission
as exhibit to File No.333-26519.
The answer to Item 2 is based in part on information provided or
confirmed by the obligor. The accuracy and completeness of such information is
hereby disclaimed by the Trustee.
3
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Texas Commerce Bank National Association, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Dallas, and State of Texas, on the 5th day of June, 1997.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JOHN G. JONES
---------------------------------------------
Name: John G. Jones
Title: Vice President and Trust Officer
4
<PAGE> 5
EXHIBIT 6
Texas Commerce Bank National Association, as a condition to
qualification under the Trust Indenture Act of 1939, consents that reports of
examinations by federal, state, territorial, or district authorities may be
furnished by such authorities to the Securities and Exchange Commission of the
United States upon request of said Commission for said reports, as provided in
Section 321 of said Trust Indenture Act of 1939.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
By: /s/ JOHN G. JONES
------------------------------------
Title: Vice President and Trust Officer
Date: June 5, 1997
5
