<PAGE>
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NUEVO ENERGY COMPANY,
ANY SUBSIDIARY GUARANTORS
Named in Supplements Hereto
and
STATE STREET BANK AND TRUST COMPANY
Trustee
_______________
Indenture
Dated as of September 26, 2000
_______________
$150,000,000
Series A and Series B
9 3/8% Senior Subordinated Notes due 2010
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<PAGE>
Reconciliation and Tie between Trust Indenture Act
of 1939 and Indenture, dated as of August 20, 1999
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
<S> <C>
(S)310 (a)(1) ......................................... 6.7
(a)(2) ......................................... 6.7
(b) ......................................... 6.7, 6.8, 6.9
(S)311 (a) ......................................... 6.12
(b) ......................................... 6.12
(S)312 ......................................... 7.1
(S)313 ......................................... 7.2
(S)314 (a) ......................................... 7.3
(a)(4) ......................................... 10.8(a)
(c)(1) ......................................... 15.1
(c)(2) ......................................... 15.1
(e) ......................................... 15.1
(S)315 (a) ......................................... 6.1
(b) ......................................... 6.13
(c) ......................................... 6.1
(d) ......................................... 6.1
(S)316 (a) (last sentence) .........................................
1.1 ("Outstanding")
(a)(1)(A) ......................................... 5.2, 5.12
(a)(1)(B) ......................................... 5.13
(b) ......................................... 5.8
(c) ......................................... 15.3(d)
(S)317 (a)(1) ......................................... 5.3
(a)(2) ......................................... 5.4
(b) ......................................... 10.3
(S)318 (a) ......................................... 15.10(b)
</TABLE>
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION......................... 2
Section 1.1 Definitions..................................................................... 2
Section 1.2 Other Definitions............................................................... 27
Section 1.3 Incorporation by Reference of Trust Indenture Act............................... 27
Section 1.4 Rules of Construction........................................................... 28
ARTICLE II SECURITY FORMS.................................................................. 28
Section 2.1 Forms Generally................................................................. 28
Section 2.2 Form of Face of Security........................................................ 29
Section 2.3 Form of Reverse of Security..................................................... 32
Section 2.4 Form of Notation Relating to Subsidiary Guarantees.............................. 37
Section 2.5 Form of Trustee's Certificate of Authentication................................. 39
ARTICLE III THE SECURITIES.................................................................. 39
Section 3.1 Title and Terms................................................................. 39
Section 3.2 Denominations................................................................... 41
Section 3.3 Execution, Authentication, Delivery and Dating.................................. 41
Section 3.4 Temporary Securities............................................................ 42
Section 3.5 Registration of Transfer and Exchange........................................... 42
Section 3.6 Book-Entry Provisions for Global Securities..................................... 46
Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities................................ 47
Section 3.8 Payment of Interest; Interest Rights Preserved.................................. 48
Section 3.9 Persons Deemed Owners........................................................... 49
Section 3.10 Cancellation.................................................................... 49
Section 3.11 Computation of Interest......................................................... 49
Section 3.12 Private Placement Legend........................................................ 49
ARTICLE IV SATISFACTION AND DISCHARGE...................................................... 50
Section 4.1 Satisfaction and Discharge of Indenture......................................... 50
Section 4.2 Application of Trust Money...................................................... 51
ARTICLE V REMEDIES........................................................................ 51
Section 5.1 Events of Default............................................................... 51
Section 5.2 Acceleration of Maturity: Rescission and Annulment.............................. 53
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee................. 54
Section 5.4 Trustee May File Proofs of Claim................................................ 55
Section 5.5 Trustee May Enforce Claims Without Possession of Securities..................... 56
Section 5.6 Application of Money Collected.................................................. 56
Section 5.7 Limitation on Suits............................................................. 56
Section 5.8 Unconditional Right of Holders to Receive Principal Premium and Interest........ 57
Section 5.9 Restoration of Rights and Remedies.............................................. 57
Section 5.10 Rights and Remedies Cumulative.................................................. 57
Section 5.11 Delay or Omission Not Waiver.................................................... 58
Section 5.12 Control by Holders.............................................................. 58
Section 5.13 Waiver of Past Defaults......................................................... 58
Section 5.14 Waiver of Stay, Extension or Usury Laws......................................... 59
ARTICLE VI THE TRUSTEE..................................................................... 59
Section 6.1 Duties of Trustee............................................................... 59
Section 6.2 Certain Rights of Trustee....................................................... 60
Section 6.3 Trustee Not Responsible for Recitals or Issuance of Securities.................. 61
Section 6.4 May Hold Securities............................................................. 61
Section 6.5 Money Held in Trust............................................................. 61
Section 6.6 Compensation and Reimbursement.................................................. 61
Section 6.7 Corporate Trustee Required; Eligibility......................................... 62
Section 6.8 Conflicting Interests........................................................... 62
Section 6.9 Resignation and Removal; Appointment of Successor............................... 63
Section 6.10 Acceptance of Appointment by Successor.......................................... 64
Section 6.11 Merger, Conversion, Consolidation or Succession to Business..................... 64
Section 6.12 Preferential Collection of Claims Against Company............................... 64
Section 6.13 Notice of Defaults.............................................................. 65
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY............................... 65
Section 7.1 Holders' Lists; Holder Communications; Disclosures Respecting Holders........... 65
</TABLE>
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<TABLE>
<S> <C>
Section 7.2 Reports By Trustee.............................................................. 65
Section 7.3 Reports by Company.............................................................. 66
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............................ 66
Section 8.1 Company May Consolidate, etc., Only on Certain Terms............................ 66
Section 8.2 Successor Substituted........................................................... 68
ARTICLE IX SUPPLEMENTAL INDENTURES......................................................... 68
Section 9.1 Supplemental Indentures Without Consent of Holders.............................. 68
Section 9.2 Supplemental Indentures with Consent of Holders................................. 69
Section 9.3 Execution of Supplemental Indentures............................................ 70
Section 9.4 Effect of Supplemental Indentures............................................... 70
Section 9.5 Conformity with Trust Indenture Act............................................. 70
Section 9.6 Reference in Securities to Supplemental Indentures.............................. 71
Section 9.7 Notice of Supplemental Indentures and Waivers................................... 71
Section 9.8 Effect on Senior Indebtedness................................................... 71
ARTICLE X COVENANTS....................................................................... 71
Section 10.1 Payment of Principal, Premium, if any, and Interest............................. 71
Section 10.2 Maintenance of Office or Agency................................................. 72
Section 10.3 Money for Security Payments to Be Held in Trust................................. 72
Section 10.4 Corporate Existence............................................................. 74
Section 10.5 Payment of Taxes and Other Claims............................................... 74
Section 10.6 Maintenance of Properties....................................................... 74
Section 10.7 Insurance....................................................................... 75
Section 10.8 Statement by Officers as to Default............................................. 75
Section 10.9 Provision of Financial Information.............................................. 75
Section 10.10 Limitation on Restricted Payments............................................... 76
Section 10.11 Limitation on Other Senior Subordinated Indebtedness............................ 80
Section 10.12 Incurrence of Indebtedness...................................................... 80
Section 10.13 Subsidiary Guarantors........................................................... 80
Section 10.14 Limitation on Issuance and Sale of Capital Stock by Restricted Subsidiaries..... 80
Section 10.15 Limitation on Liens............................................................. 81
Section 10.16 Purchase of Securities Upon Change of Control................................... 81
Section 10.17 Disposition of Proceeds of Asset Sales.......................................... 83
Section 10.18 Limitation on Transactions with Affiliates...................................... 86
Section 10.19 Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries......................................................... 87
Section 10.20 Waiver of Certain Covenants..................................................... 87
Section 10.21 Qualification of Indenture...................................................... 88
ARTICLE XI REDEMPTION OF SECURITIES........................................................ 88
Section 11.1 Right of Redemption............................................................. 88
Section 11.2 Applicability of Article........................................................ 88
Section 11.3 Election to Redeem; Notice to Trustee........................................... 88
Section 11.4 Selection by Trustee of Securities to Be Redeemed............................... 89
Section 11.5 Notice of Redemption............................................................ 89
Section 11.6 Deposit of Redemption Price..................................................... 90
Section 11.7 Securities Payable on Redemption Date........................................... 90
Section 11.8 Securities Redeemed in Part..................................................... 90
Section 11.9 Purchase of Securities.......................................................... 91
ARTICLE XII DEFEASANCE AND COVENANT DEFEASANCE.............................................. 91
Section 12.1 Company's Option to Effect Defeasance or Covenant Defeasance.................... 91
Section 12.2 Defeasance and Discharge........................................................ 91
Section 12.3 Covenant Defeasance............................................................. 92
Section 12.4 Conditions to Defeasance or Covenant Defeasance................................. 92
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions........................................... 94
Section 12.6 Reinstatement................................................................... 94
ARTICLE XIII SUBSIDIARY GUARANTEES........................................................... 95
Section 13.1 Unconditional Guarantee......................................................... 95
Section 13.2 Subsidiary Guarantors May Consolidate, etc., on Certain Terms................... 96
Section 13.3 Release of Subsidiary Guarantors................................................ 97
Section 13.4 Limitation of Subsidiary Guarantors' Liability.................................. 97
Section 13.5 Contribution.................................................................... 98
Section 13.6 Execution and Delivery of Notations of Subsidiary Guarantees.................... 98
</TABLE>
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<TABLE>
<S> <C>
Section 13.7 Severability.................................................................... 99
Section 13.8 Subsidiary Guarantees Subordinated to Guarantor Senior Indebtedness............. 99
Section 13.9 Subsidiary Guarantors Not to Make Payments with Respect to Subsidiary Guarantees
in Certain Circumstances........................................................ 99
Section 13.10 Subsidiary Guarantees Subordinated to Prior Payment of All Guarantor
Senior Indebtedness upon Dissolution, etc....................................... 100
Section 13.11 Holders to be Subrogated to Rights of Holders of Guarantor Senior
Indebtedness.................................................................... 101
Section 13.12 Obligations of Subsidiary Guarantors Unconditional.............................. 102
Section 13.13 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice......... 102
Section 13.14 Application by Trustee of Money Deposited with it............................... 102
Section 13.15 Subordination Rights Not Impaired by Acts or Omissions of Subsidiary
Guarantors or Holders of Guarantor Senior Indebtedness.......................... 103
Section 13.16 Holders Authorize Trustee to Effectuate Subordination of Subsidiary
Guarantees...................................................................... 104
Section 13.17 Right of Trustee to Hold Guarantor Senior Indebtedness.......................... 104
Section 13.18 Article XIII Not to Prevent Events of Default................................... 104
Section 13.19 Payment......................................................................... 104
Section 13.20 Payment Permitted If No Default................................................. 104
ARTICLE XIV SUBORDINATION OF SECURITIES..................................................... 105
Section 14.1 Securities Subordinate to Senior Indebtedness................................... 105
Section 14.2 Payment over of Proceeds upon Dissolution, etc.................................. 105
Section 14.3 Suspension of Payment When Senior Indebtedness in Default....................... 106
Section 14.4 Payment Permitted If No Default................................................. 107
Section 14.5 Subrogation to Rights of Holders of Senior Indebtedness......................... 107
Section 14.6 Provisions Solely to Define Relative Rights..................................... 108
Section 14.7 Trustee to Effectuate Subordination............................................. 108
Section 14.8 No Waiver of Subordination Provision............................................ 108
Section 14.9 Notice to Trustee............................................................... 109
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent Bank............. 109
Section 14.11 Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's
Rights.......................................................................... 110
Section 14.12 Article Applicable to Paying Agents............................................. 110
Section 14.13 No Suspension of Remedies....................................................... 110
Section 14.14 Trust Money Not Subordinated.................................................... 110
ARTICLE XV MISCELLANEOUS................................................................... 110
Section 15.1 Compliance Certificates and Opinions............................................ 110
Section 15.2 Form of Documents Delivered to Trustee.......................................... 111
Section 15.3 Acts of Holders................................................................. 112
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary Guarantors..................... 113
Section 15.5 Notice to Holders; Waiver....................................................... 113
Section 15.6 Effect of Headings and Table of Contents........................................ 114
Section 15.7 Successors and Assigns.......................................................... 114
Section 15.8 Separability Clause............................................................. 114
Section 15.9 Benefits of Indenture........................................................... 114
Section 15.10 Governing Law; Trust Indenture Act Controls..................................... 114
Section 15.11 Legal Holidays.................................................................. 115
Section 15.12 No Recourse Against Others...................................................... 115
Section 15.13 Duplicate Originals............................................................. 115
Section 15.14 No Adverse Interpretation of Other Agreements................................... 115
</TABLE>
Exhibit A - Form of Legend for Global Securities
Exhibit B - Transfer or Exchange Certificate
Exhibit C - Transferee Certificate for Institutional
Accredited Investors
Exhibit D - Transferee Certificate for Regulation S Transfers
Exhibit E - Form of Supplemental Indenture
Annex A - Registration Rights Agreement
-iii-
<PAGE>
THIS INDENTURE, dated as of September 26, 2000, is between NUEVO
ENERGY COMPANY, a Delaware corporation (hereinafter called the "Company"), any
SUBSIDIARY GUARANTORS (as defined hereinafter) that may become parties hereto
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of a series of its debt
securities denominated as its 9 3/8% Senior Subordinated Notes due 2010, Series
A (the "Series A Securities") and a second series of such debt securities
denominated as its 9 3/8% Senior Subordinated Notes due 2010, Series B (the
"Series B Securities" and, together with the Series A Securities, the
"Securities"), of substantially the tenor and principal amounts hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
The Series A Securities are to be originally issued in an aggregate
principal amount of $150,000,000 on the date hereof pursuant to the Purchase
Agreement; additional Series A Securities may be originally issued from time to
time thereafter in an aggregate amount of up to $150,000,000; and Series B
Securities may also be originally issued from time to time hereafter, but only
in exchange for Series A Securities then outstanding, in each case pursuant to a
Registration Rights Agreement in an Exchange Offer.
The Company shall cause each of its Restricted Subsidiaries (as
defined herein), prior to, or contemporaneously with, such Restricted
Subsidiary's incurrence of certain obligations as set forth in this Indenture,
to execute and deliver a supplement hereto pursuant to which such Restricted
Subsidiary shall agree to be bound by the terms of this Indenture, as if it were
an original party hereto, and to guarantee the Company's obligations under this
Indenture and the Securities, thereby becoming a Subsidiary Guarantor for
purposes of this Indenture.
All things necessary have been done on the part of the Company to make
the Securities, when issued and executed by the Company and authenticated and
delivered by the Trustee as herein provided, the valid obligations of the
Company, in accordance with their respective terms.
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, without
preference of one series of Securities over the other and without preference of
any Securities of one series over any other Securities of the same series as a
result of any different dates of their original issuance, as follows:
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
-----------
"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.
"Act," when used with respect to any Holder, has the meaning specified
in Section 15.3.
"Adjusted Consolidated Net Tangible Assets" means (without
duplication), as of the date of determination, (a) the sum of (i) discounted
future net cash flows from proved oil and gas reserves of the Company and its
Restricted Subsidiaries calculated in accordance with SEC guidelines but before
any state or federal income taxes, as estimated by a nationally recognized firm
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 cash flows from (A)
estimated proved oil and gas reserves acquired since the date of such year-end
reserve report, and (B) estimated oil and gas reserves attributable to
extensions, discoveries and other additions and upward revisions of estimates of
proved oil and gas reserves since the date of such year-end reserve report due
to exploration, development, exploitation, production or other activities, in
each case calculated in accordance with SEC guidelines (but before any state or
federal income taxes and utilizing the prices utilized in such year-end reserve
report), and decreased by, as of the date of determination, the estimated
discounted future net cash flows from (C) estimated proved oil and gas reserves
produced or disposed of since the date of such year-end reserve report and (D)
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 exploration, development, exploitation, production or other activities,
in each case calculated in accordance with SEC guidelines (but before any state
or federal income taxes and utilizing the prices utilized in such year-end
reserve report); provided, that in the case of each of the determinations made
pursuant to clauses (A) through (D), such increases and decreases shall be as
estimated by the Company's petroleum engineers, except that in the event there
is a Material Change as a result of such acquisitions, dispositions, or
revisions, then the discounted future net cash flows utilized for purposes of
this clause (a)(i) shall be confirmed in writing by a nationally recognized firm
of independent petroleum engineers, (ii) 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, (iii) the Net Working
Capital on a date no earlier than the date of the Company's latest annual or
quarterly financial statements and (iv) the greater of (A) the net book value on
a date no earlier than the date of the Company's latest annual or quarterly
financial statements or (B) the appraised value, as estimated by independent
appraisers, of other tangible assets (including, without
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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 (b) the sum of (i)
minority interests (other than a minority interest in a Finance Person), (ii)
any net gas balancing liabilities of the Company and its Restricted Subsidiaries
reflected in the Company's latest audited financial statements, (iii) to the
extent included in (a)(i) above, the discounted future net cash flows,
calculated in accordance with SEC guidelines (but before any state or federal
income taxes and 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 (iv) the discounted future net cash flows,
calculated in accordance with SEC guidelines but before any state or federal
income taxes, 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 cash flows specified in (a)(i)
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.
"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.
"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 (a) any Capital Stock
of any Restricted Subsidiary held by the Company or any Restricted Subsidiary
(other than directors' qualifying shares and shares owned by foreign
shareholders to the extent required by applicable local laws in the foreign
countries), (b) all or substantially all of the Properties of the Company or any
of its Restricted Subsidiaries or (c) any other Properties of the Company or any
of its Restricted Subsidiaries other than (i) a disposition of hydrocarbons or
other mineral products, inventory, accounts receivable, cash, Cash Equivalents
or other Property in the ordinary course of business, (ii) any lease,
abandonment, disposition, relinquishment or farm-out of any oil and gas Property
in the ordinary course of business, (iii) the liquidation of Property received
in settlement of debts owing to the Company or any Restricted Subsidiary as a
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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 or (iv) the
issuance and sale of Qualified Capital Stock by a Finance Person. 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 VIII hereof; (ii) any transfer of Properties to an
Unrestricted Subsidiary, if permitted under Section 10.10 hereof; or (iii) any
transfer, in one or a series of related transactions, of Properties having a
Fair Market Value of less than $2,500,000.
"Average Life" means, with respect to any Indebtedness, as at any date
of determination, the quotient obtained by dividing (a) the sum of the products
of (i) 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 (ii) the amount of each
such principal payment by (b) 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.
"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, and delivered to the
Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the Borough of
Manhattan, The City of New York, New York or the City of Boston, Massachusetts,
are authorized or obligated by law or executive order to close.
"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 that do not constitute Eligible
Convertible Securities), warrants or options exercisable for, exchangeable for
or convertible into such an equity interest in such Person. (For avoidance of
doubt, the Capital Stock of the Company includes any Qualifying TECONS and any
Eligible Convertible Securities.)
"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.
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"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United States of America is
pledged in support thereof); (ii) demand and time deposits and certificates of
deposit or acceptances with a maturity of 180 days or less of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000; (iii)
commercial paper with a maturity of 180 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-l by
S&P or at least P-l 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: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), is or becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50%
of the total Voting Stock of the Company; (b) 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
than 50% of the total voting power of the Voting Stock of the surviving or
resulting Person; (c) the Company, either individually or in conjunction with
one or more Restricted Subsidiaries, sells, assigns, conveys, transfers, leases
or otherwise disposes of, or the Restricted Subsidiaries sell, assign, convey,
transfer, lease 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); (d) 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
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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;
(e) the liquidation or dissolution of the Company; or (f) so long as any
Existing Notes are outstanding, any other event constituting a Change of Control
pursuant to the applicable Existing Indenture.
"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.
"Commission" or "SEC" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"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.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, 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" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"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 (a) the sum of Consolidated Net Income, Consolidated Interest Expense,
the portion of Consolidated Exploration Expenses deducted in computing
Consolidated Net Income, 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 (x) the amount of deferred
revenues that are amortized during such period and are attributable to reserves
that are subject to Volumetric Production Payments and (y) amounts recorded in
accordance with GAAP as repayments of principal and interest pursuant to Dollar-
Denominated Production Payments, to (b) the sum of such Consolidated Interest
Expense for such period; provided, however, that (i) the Consolidated Fixed
Charge Coverage Ratio shall be calculated on the assumption that (A) the
Indebtedness to be incurred (and all other Indebtedness incurred after the first
day of the period of four full fiscal quarters under Section 10.12 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
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Indebtedness, on the assumption that the related transaction (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 (B) 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 four-quarter period through and
including the date of determination, had been consummated on such first day of
such four-quarter period, (ii) 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 10.12 hereof and (A)
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
(B) 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, (iii) 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 10.12 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, (iv) notwithstanding clauses (ii) and (iii) 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, (v) in making
such calculation, Consolidated Interest Expense shall exclude interest
attributable to Dollar-Denominated Production Payments, and (vi) if after the
first day of the period referred to in clause (a) of this definition the Company
has retired any Indebtedness out of the net cash proceeds of the issue and sale
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, (A) any amortization of
debt discount, (B) the net cost under Interest Rate Protection Obligations
(including any amortization of discounts), (C) the interest portion of any
deferred payment obligation constituting Indebtedness, (D) all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and (E) all accrued interest, in each case to the
extent attributable to such period, (b) to the extent any Indebtedness of any
Person (other than the Company or a Restricted Subsidiary) is guaranteed by the
Company or any Restricted Subsidiary, the
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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 of the Company and its Restricted
Subsidiaries, to the extent such Redeemable Capital 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, less (ii) to the extent included in
clause (i), (a) fees and expenses associated with the Refinancing, (b)
amortization of capitalized debt issuance costs of the Company and its
Restricted Subsidiaries during such period, (c) dividends on Qualifying TECONS,
and (d) non-cash interest on Eligible Convertible Securities.
"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 (a) net after-tax
extraordinary gains or losses (less all fees and expenses relating thereto), (b)
net after-tax gains or losses (less all fees and expenses relating thereto)
attributable to Asset Sales, (c) 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), (d) 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, (e) 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, judgment, decree, order,
statute, rule or governmental regulation applicable to that Restricted
Subsidiary or its stockholders, (f) dividends paid on Qualifying TECONS, (g)
non-cash interest on Eligible Convertible Securities, to the extent deducted in
determining consolidated net income (or loss), (h) fees and expenses associated
with the Refinancing, to the extent deducted in determining consolidated net
income (or loss), (i) Consolidated Exploration Expenses and any writedowns or
impairments of non-current assets (less an amount equal to the amortization on a
quarterly basis of the cumulative Consolidated Exploration Expenses and
writedowns or impairments of non-current assets, calculated as two and one-half
percent of the cumulative net balance of such costs); and (j) solely for
purposes of calculating the Consolidated Fixed Charge Coverage Ratio at any
time, net gains or losses on oil and natural gas price hedging arrangements
during periods ending on or prior to March 31, 2000.
"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 to Redeemable Capital Stock or
treasury stock of the Company and its Restricted Subsidiaries, as determined in
accordance with GAAP.
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"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 to the extent required as an accrual of or reserve for
cash charges for any future period).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of execution of this Indenture is
located at 2 Avenue de Lafayette, Boston, Massachusetts 02111-1724.
"Credit Facility" means that certain Third Restated Credit Agreement
among the Company, certain Subsidiaries of the Company, Bank of America, N.A.,
as Administrative Agent, Morgan Guaranty Trust Company of New York, as
Documentation Agent, and certain lenders named therein, as the same may be
amended, modified, supplemented, extended, restated, replaced, renewed or
refinanced from time to time.
"Default" means any event that is or with the passage of time or
giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.8 hereof.
"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 an interest arising solely from the beneficial
ownership of Capital Stock of the Company) in or with respect to such
transaction or series of transactions.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Eligible Convertible Securities" means any security issued by the
Company that (a) is subordinated in right of payment to the Securities, (b) has
a final Stated Maturity at least 91 days after the final Stated Maturity of the
Securities, and (c) by its terms or by the terms of any security into which it
is convertible or by contract or otherwise requires no scheduled payments,
including principal, premium, interest and fees, prior to its final Stated
Maturity, other than payments payable only in shares of Common Stock issued by
the Company or in options, warrants or other rights to purchase Common Stock
issued by the Company.
"Equity Offering" means a bona fide underwritten sale to the public of
Common Stock of the Company pursuant to a registration statement (other than on
Form S-8 or any other form relating to securities issuable under any employee
benefit plan of the Company) that is declared effective by the Commission
following the Issue Date.
"Event of Default" has the meaning specified in Section 5.1 hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor act thereto.
"Exchange Offer" means the offer that may be made by the Company
pursuant to a Registration Rights Agreement to exchange Series B Securities for
Series A Securities.
"Exchanged Properties" means Properties used or useful in the Oil and
Gas Business received by the Company or a Restricted Subsidiary in exchange for
other Properties owned by it, whether directly or indirectly through the
acquisition of the Capital Stock of a Person holding such Properties so that
such Person becomes a Wholly Owned Restricted Subsidiary of the Company, in
trade or as a portion of the total consideration for such other Properties.
"Existing Indentures" means the Existing Old 9 1/2% Indenture and the
Existing New 9 1/2% Indenture.
"Existing New 9 1/2% Indenture" means that certain indenture dated as
of August 20, 1999 among the Company, its Subsidiaries party thereto and State
Street Bank and Trust Company, as Trustee, as the same may have been amended or
supplemented from time to time prior to the date hereof.
"Existing New 9 1/2% Notes" means the 9 1/2% Senior Subordinated Notes
due 2008 issued pursuant to the Existing New 9 1/2% Indenture.
"Existing Notes" means the Existing Old 9 1/2% Notes and the Existing
New 9 1/2% Notes.
"Existing Old 9 1/2% Indenture" means that certain indenture dated as
of April 1, 1996, among the Company, its Subsidiaries party thereto and State
Street Bank and Trust Company, as Trustee, as the same may have been amended or
supplemented from time to time prior to the date hereof.
"Existing Old 9 1/2% Notes" means the Old 9 1/2% Senior Subordinated
Notes due 2006, Series B issued pursuant to the Existing Old 9 1/2% Indenture.
"Existing TECONS" means the Company-Obligated Mandatorily Redeemable
Convertible Preferred Securities issued by Nuevo Financing I, a statutory
business trust wholly owned by the Company, on December 23, 1996, in an
aggregate liquidation amount of $115,000,000.
"Fair Market Value" means the fair market value of a Property
(including shares of Capital Stock) as determined in good faith by the Board of
Directors of the Company and evidenced by a Board Resolution, 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.
"Federal Bankruptcy Code" means the United States Bankruptcy Code of
Title 11 of the United States Code, as amended from time to time.
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"Finance Person" means a Subsidiary of the Company, the Common Stock
of which is owned by the Company, that does not engage in any activity other
than (i) the holding of Subordinated Indebtedness with respect to which payments
of interest on such Subordinated Indebtedness can, at the election of the issuer
thereof, be deferred for one or more payment periods, (ii) the issuance of
Qualifying TECONS and Common Stock and/or debt securities and (iii) any activity
necessary, incidental or related to the foregoing.
"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 effective date of this Indenture.
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 connection with (including any fees, premiums, expenses,
including costs of collection, and indemnities) any Indebtedness of a Subsidiary
Guarantor, whether outstanding on the date of this 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 10.12
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 Security is registered in a
Security Register.
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"Indebtedness" means, with respect to any Person, without duplication,
(a) 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 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, (b) all
obligations of such Person 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, (c) 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, (d) all Capitalized Lease Obligations of such Person, (e)
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), (f) 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), (g) all Redeemable Capital Stock of
such Person valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends and (h) 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; provided,
however, that Indebtedness shall not include (i) Eligible Convertible
Securities, (ii) Qualifying TECONS and (iii) Indebtedness (including guarantees
thereof) relating to Qualifying TECONS and held by a Finance Person; provided
further, that Indebtedness shall include debt securities issued in connection
with Existing TECONS and, for purposes of Section 5.1(e) hereof only,
Indebtedness shall include debt securities issued in connection with Qualifying
TECONS and debt securities issued in connection with Eligible Convertible
Securities. 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 (f)
of the first sentence of this definition, neither Dollar-Denominated Production
Payments nor Volumetric Production Payments shall be deemed to be Indebtedness.
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"Indenture" means this instrument as originally executed and 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.
"Initial Purchasers" means the initial purchasers from the Company of
the Offered Securities viz. Banc of America Securities LLC, Banc One Capital
Markets, Inc. and J.P. Morgan Securities Inc.
"Insolvency or Liquidation Proceeding" means, 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.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"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) or evidences of
Indebtedness issued by, any other Person. In addition, 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.
In addition, in the event an Unrestricted Subsidiary is designated as a
Restricted Subsidiary, then there shall be deemed to be a return of an
"Investment" in the amount of the lesser of (i) the book value of the
Investments previously made in such Unrestricted Subsidiary that were treated as
Restricted Payments, and (ii) the Fair Market Value of the net assets of such
Unrestricted Subsidiary at such time. "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 10.12 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
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result of Asset Sales permitted under Section 10.17 hereof and (d) endorsements
of negotiable instruments and documents in the ordinary course of business.
"Issue Date" means the date on which the Offered Securities were first
issued under this Indenture.
"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.
"Liquid Securities" means securities (i) of an issuer that is not an
Affiliate of the Company and (ii) that are publicly traded on the New York Stock
Exchange, the American Stock Exchange, the Toronto Stock Exchange, the
Australian Stock Exchange, the London Stock Exchange or the Nasdaq National
Market; provided that securities meeting the requirements of clauses (i) and
(ii) above shall be treated as Liquid Securities from the date of receipt
thereof until and only until the earlier of (x) the date on which such
securities (or securities exchangeable for, or convertible into, such
securities) are sold or exchanged for cash or Cash Equivalents and (y) 180 days
following the date of receipt of such securities. If such securities (or
securities exchangeable for, or convertible into, such securities) are not sold
or exchanged for cash or Cash Equivalents within 180 days of receipt thereof,
for purposes of determining whether the transaction pursuant to which the
Company or a Restricted Subsidiary received the securities was in compliance
with the provisions of Section 10.17(a) hereof, such securities shall be deemed
not to have been Liquid Securities until 181 days following the date of receipt
of such securities.
"Material Change" means an increase or decrease (excluding changes
that result solely from changes in prices) of more than 30% during a fiscal
quarter in the estimated discounted future net cash flows from proved oil and
gas reserves of the Company and its Restricted Subsidiaries, calculated in
accordance with clause (a)(i) 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 in compliance with Section 10.17 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.
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"Maturity" means, with respect to any Security, the date on which any
principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"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 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, less (ii) all current liabilities of the Company
and its Restricted Subsidiaries, except current liabilities included in
Indebtedness, in each case as set forth in consolidated 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 Purchase Money Indebtedness" means (i) Indebtedness
(other than Capital Lease Obligations) of the Company or any Restricted
Subsidiary incurred in connection with the acquisition by the Company or such
Restricted Subsidiary in the ordinary course of business of fixed assets used in
the Oil and Gas Business (including office buildings and other real property
used by the Company or such Restricted Subsidiary in conducting its operations)
and (ii) any renewals and refinancings of such Indebtedness; provided that the
holders of such Indebtedness described in clauses (i) and (ii) agree that they
will look solely to the fixed assets so acquired which secure such Indebtedness
(subject to customary exceptions such as indemnifications for environmental,
title, fraud and other matters), and neither the Company nor any Restricted
Subsidiary (a) is directly or indirectly liable for such Indebtedness or (b)
provides credit support, including any undertaking, guarantee, agreement or
instrument that would constitute Indebtedness (other than the grant of a Lien on
such acquired fixed assets).
"Offered Securities" has the meaning set forth in Section 3.1 hereof.
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"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.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered
to the Trustee.
"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 and other minerals and products produced in association
therewith, (iv) any power generation and electrical transmission business in a
jurisdiction outside of North America where fuel required by such business is
supplied, directly or indirectly, from production reserves substantially from
blocks in which the Company or its Restricted Subsidiaries participate and (v)
any activity necessary, appropriate or incidental to the activities described in
the foregoing clauses (i) through (iv) 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.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, 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 Securities, provided 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;
(iii) Securities, except to the extent provided in Sections 12.2
and 12.3 hereof, with respect to which the Company has effected legal
defeasance or covenant defeasance as provided in Article XII hereof; and
(iv) Securities which have been paid pursuant to Section 3.7
hereof 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 the Securities are valid obligations of the
Company;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities 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, Securities owned
by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities 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 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, any Subsidiary Guarantor or
any other obligor upon the Securities or any Affiliate of the Company, any
Subsidiary Guarantor or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the Company that
is pari passu in right of payment to the Securities, including, without
limitation, the Existing Notes.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (and premium, if
any, on) or interest on any Securities on behalf of the Company.
"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).
"Permitted Guarantor Junior Securities" 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.
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"Permitted Indebtedness" means any of the following:
(i) Indebtedness under the Credit Facility in an aggregate
principal amount at any one time outstanding not to exceed the greater of
(A) $400,000,000, less (1) any amounts of principal of such Indebtedness
repaid pursuant to clause (b)(i)(A) of Section 10.17 hereof, and (2) any
amount of principal of such Indebtedness that was refinanced pursuant to,
and that could only be refinanced pursuant to, clause (x) of this
definition; or (B) the borrowing base thereunder, less, in the event that
the Company incurs additional Indebtedness by refinancing Indebtedness
under the Credit Facility on any date, pursuant to, and that could only be
refinanced pursuant to, clause (x) of this definition, twenty-five percent
of the aggregate amount of principal of such Indebtedness, until, and only
until, the Consolidated Fixed Charge Coverage Ratio for any period of four
full fiscal quarters ending after such date is at least 2.5 to 1.0,
provided that both subclauses (A) and (B) shall include any guarantee of
any such Indebtedness and any fees, premiums, expenses (including costs of
collection), indemnities and other amounts payable in connection with such
Indebtedness;
(ii) Indebtedness under the Offered Securities and any
Subsidiary Guarantees relating thereto or to any other Securities;
(iii) Indebtedness outstanding on the date of this Indenture,
including, without limitation, the Existing 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 or a Finance Person and Indebtedness of a Restricted Subsidiary
to the Company or a Wholly Owned Restricted Subsidiary or a Finance Person;
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
such Finance Person ceasing to be a Finance Person, as the case may be, or
any other subsequent transfer of any such Indebtedness (except to the
Company or a Wholly Owned Restricted Subsidiary or a Finance Person), such
Indebtedness shall be deemed, in each case, to be incurred and shall be
treated as an incurrence for purposes of Section 10.12 at the time the
Wholly Owned Restricted Subsidiary or Finance Person in question ceased to
be a Wholly Owned Restricted Subsidiary or Finance Person, as the case may
be;
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(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);
(viii) any guarantee of Senior Indebtedness or Guarantor Senior
Indebtedness incurred in compliance with Section 10.12 hereof, by a
Restricted Subsidiary or the Company;
(ix) Non-Recourse Purchase Money Indebtedness;
(x) any renewals, substitutions, exchanges, refinancings or
replacements (each, for purposes of this clause, a "refinancing") by the
Company or a Restricted Subsidiary of any Indebtedness incurred pursuant to
the provisions of Section 10.12 (excluding Permitted Indebtedness) or
pursuant to clause (i), (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, (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 Securities or subordinated to the Securities at least
to the same extent as the Indebtedness being refinanced, (C) in the case of
any refinancing of Indebtedness pursuant to clause (i) of this definition,
such new Indebtedness is either Pari Passu Indebtedness or Subordinated
Indebtedness and has a final Stated Maturity of at least 91 days after the
final Stated Maturity of the Securities and (D) 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; and
(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
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(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 actively exploiting, exploring for, acquiring,
developing, processing, gathering, marketing or transporting oil and gas through
agreements, transactions, interests or arrangements which permit a Person to
share risks or costs, comply with regulatory requirements regarding local
ownership or satisfy other objectives customarily achieved through the conduct
of the Oil and Gas Business jointly with third parties, including, without
limitation, (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 (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; (viii) Investments in
obligations or securities received as a result of any Asset Sale; (ix) advances
and loans to officers, directors and employees of the Company or any Restricted
Subsidiary in the ordinary course of business; (x) Investments pursuant to any
agreement or obligation in effect on the date of this Indenture; (xi)
Investments in 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; and (xii)
contributions to Unrestricted Subsidiaries of the Company's interests in 24
undeveloped federal leases offshore California, known as the COOGER acreage,
included in seven units (Bonita, Sword, Point Sal, Gato Canyon, Lion Rock,
Purisina Point and Santa Maria).
"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.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the Issue Date, and any renewal,
extension, refunding, exchange 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, refunding, exchange or refinancing
thereof;
(b) Liens securing the Securities or the Subsidiary Guarantees;
and
(c) Liens in favor of the Company.
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"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security, including any Security of a different series, 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 3.7 hereof in exchange for a mutilated security or in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security.
"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 Indenture, including, without limitation, all classes and
series of preferred or preference stock of such Person.
"Private Placement Legend" means the legend initially set forth in
Section 2.2 hereof.
"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.
"Purchase Agreement" means the Purchase Agreement dated September 19,
2000 among the Company and the Initial Purchasers.
"Qualified Capital Stock" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock and, with respect to
the Company, Qualified Capital Stock includes, without limitation, any
Qualifying TECONS and any Eligible Convertible Securities.
"Qualified Institutional Buyer" has the meaning attributed thereto in
Rule 144A under the Securities Act.
"Qualifying TECONS" means preferred trust securities or similar
securities issued by a Finance Person after the date of this Indenture.
"Record Date" means a Regular Record Date or a Special Record Date.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms 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; provided, that
Redeemable Capital Stock shall not include any security by virtue
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of the fact that it may be exchanged or converted at the option of the holder,
or at the option of the Company, into Common Stock of the Company..
"Redemption Date," when used with respect to any Security to be
redeemed, in whole or in part, 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.
"Refinancing" means the exchange offers, consent solicitations and
related transactions involved in the exchange of the New 9 1/2% Notes for the
Old 9 1/2% Notes and the 8 7/8% Senior Subordinated Notes due 2008 of the
Company pursuant to its Confidential Memorandum dated July 13, 1999 as
supplemented.
"Registration Default" has the meaning ascribed thereto in a
Registration Rights Agreement.
"Registration Rights Agreement" means (a) the Registration Agreement,
dated as of September 26, 2000, by and among the Company and the Initial
Purchasers, relating to the Offered Securities, a copy of which is attached
hereto as Annex A, and (b) any similar agreement that the Company may enter into
in relation to any other Series A Securities, in each case as such agreement may
be amended, modified or supplemented from time to time.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the September 15 or March 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Resale Restriction Termination Date" means, in relation to any
particular Series A Securities, the date which is two years after the later of
the date of original issue of such Series A Securities and the last date that
the Company or any Affiliate thereof was the owner of such Series A Securities
(or any Predecessor Securities).
"Responsible Officer," when used with respect to the Trustee, means
any officer in the Corporate Trust Department of the Trustee, and also means,
with respect to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company, whether
existing on or after the date of this Indenture, unless such Subsidiary of the
Company is an Unrestricted Subsidiary or is designated as an Unrestricted
Subsidiary pursuant to the terms of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Series A Securities or Series B
Securities authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and any successor act thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5 hereof.
"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 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 (A) Indebtedness evidenced by
the Securities, (B) Indebtedness of the Company that is Pari Passu Indebtedness
or is expressly subordinated in right of payment to any other Indebtedness of
the Company, (C) Indebtedness that is represented by Redeemable Capital Stock,
(D) Indebtedness of the Company to the extent incurred in violation of Section
10.12 hereof, (E) Indebtedness of the Company to any Subsidiary of the Company
or any other Affiliate of the Company or any subsidiary of such Affiliate and
(F) 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.
"Series A Securities" has the meaning stated in the first recital of
this Indenture and includes the Offered Securities.
"Series B Securities" has the meaning stated in the first recital of
this Indenture.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.8 hereof.
"Specified Guarantor Senior Indebtedness" means, with respect to a
Subsidiary Guarantor, (a) all Guarantor Senior Indebtedness of such Subsidiary
Guarantor in respect of the 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
such Guarantor Senior Indebtedness was issued specifically designates such
Guarantor Senior Indebtedness as "Specified Guarantor Senior Indebtedness" for
purposes of this 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
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Specified Guarantor Senior Indebtedness refinanced and only if the Indebtedness
issued in such refinancing is permitted under Section 10.12 hereof.
"Specified Property Sales" means the sales of any of the Company's and
its Restricted Subsidiaries', (i) East Texas oil and gas properties sold in
January, 1999 for approximately $192,000,000, and (ii) real properties, other
than the Company's and its Restricted Subsidiaries' mineral interests, owned on
the date of this Indenture and located in the Counties of Fresno, Kern, Kings,
Los Angeles, Orange, Santa Barbara and Ventura in the State of California.
"Specified Senior Indebtedness" means (a) all Senior Indebtedness of
the Company in respect of the 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 (b) 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 instruments 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 Indenture. 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 10.12 hereof.
"Stated Maturity" means, when used with respect to any Security or any
installment of interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security 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 Securities.
"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 13.1
hereof.
"Subsidiary Guarantor" means, unless and until released from its
Subsidiary Guarantor pursuant to Section 13.3 hereof, each of (i) the Company's
Restricted Subsidiaries, if any, executing a supplemental indenture in
compliance with the provisions
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of Section 10.13(a) hereof and (ii) any Person that becomes a successor
guarantor of the Securities in compliance with the provisions of Section 13.2
hereof.
"Torch Agreement" means, collectively, (i) Master Services Agreement
among the Company and Torch Energy Advisors Incorporated, Torch Operating
Company, Torch Energy Marketing, Inc., and Novistar, Inc., effective January 1,
1999; (ii) Field Operating Services Agreement between the Company and Torch
Operating Company, effective January 1, 1999; (iii) Oil and Gas Administration
Services Agreement between the Company and Novistar, Inc., effective January 1,
1999; (iv) Land Leasing Services Agreement between the Company and Torch Energy
Advisors Incorporated, effective January 1, 1999; (v) Natural Gas Marketing
Services Agreement between the Company and Torch Energy Marketing, Inc.,
effective January 1, 1999; (vi) Crude Oil Marketing Services Agreement between
the Company and Torch Energy Marketing, Inc., effective January 1, 1999; (vii)
Human Resources and Office Administration Services Agreement between the Company
and Torch Energy Advisors Incorporated, effective January 1, 1999; and (viii)
Corporate Administration Services Agreement between the Company and Torch Energy
Advisors Incorporated, effective January 1, 1999, in each case, as the same may
have been modified or amended from time to time prior to the date of this
Indenture.
"Transfer Restricted Security" has the meaning attributed thereto in a
Registration Rights Agreement; provided, however, that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether or not any Security is a Transfer Restricted Security.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and in force at the date as of which this Indenture is qualified
under the TIA, except as provided in Section 9.5 hereof.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (i) The Congo Holding Company, The
Nuevo Congo Company, Nuevo Tunisia Ltd. and Nuevo Congo Ltd., (ii) any
Subsidiary of the Company that at the time of determination will be designated
an Unrestricted Subsidiary by the Board of Directors of the Company as provided
below and (iii) 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 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) neither the Company nor
any Restricted Subsidiary has made an Investment in such Subsidiary unless such
Investment was made pursuant to, and in accordance with, Section 10.10 hereof
(other than Investments of the type described in clauses (iv) or (xii) of the
definition of Permitted Investments); 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
10.15 hereof); provided, however, that with respect to clause (a),
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<PAGE>
the Company or a Restricted Subsidiary may be liable for Indebtedness of an
Unrestricted Subsidiary if (x) such liability constituted a Permitted Investment
or a Restricted Payment permitted by Section 10.10 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 10.12 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 10.15 hereof.
"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."
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with GAAP, together with all
undertakings and obligations in connection therewith.
"Voting Stock" 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, stock 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.
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Section 1.2 Other Definitions.
-----------------
<TABLE>
<CAPTION>
Defined
Term in Section
----- ----------
<S> <C>
"Agent Members"....................................................................... 3.6
"Change of Control Notice"............................................................ 10.16(b)
"Change of Control Offer"............................................................. 10.16(a)
"Change of Control Purchase Date"..................................................... 10.16(a)
"Change of Control Purchase Price".................................................... 10.16(a)
"Defaulted Interest".................................................................. 3.8
"Excess Proceeds"..................................................................... 10.17(b)
"Funding Guarantor"................................................................... 13.5
"Global Security"..................................................................... 2.1
"Net Proceeds Deficiency"............................................................. 10.17(c)
"Net Proceeds Offer".................................................................. 10.17(c)
"Net Proceeds Payment Date"........................................................... 10.17(c)
"Offered Price"....................................................................... 10.17(c)
"Pari Passu Indebtedness Amount"...................................................... 10.17(c)
"Pari Passu Offer".................................................................... 10.17(c)
"Payment Amount"...................................................................... 10.17(c)
"Payment Blockage Notice"............................................................. 14.3(b)
"Payment Blockage Period"............................................................. 14.3(b)
"Permitted Consideration"............................................................. 10.17(a)
"Physical Securities"................................................................. 2.1
"Purchase Notice"..................................................................... 10.17(c)
"Restricted Payment".................................................................. 10.10(a)
"Special Interest".................................................................... 3.1
"Subsidiary Guarantor Non-Payment Default"............................................ 13.9(b)
"Subsidiary Guarantor Payment Default"................................................ 13.9(a)
"Subsidiary Guarantor Payment Notice"................................................. 13.9(b)
"Surviving Entity".................................................................... 8.1(a)
"Trigger Date"........................................................................ 10.17(c)
"U.S. Government Obligations"......................................................... 12.4(a)
</TABLE>
Section 1.3 Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities,
"indenture security holder" means a Holder,
"indenture to be qualified" means this Indenture,
"indenture trustee" or "institutional trustee" means the Trustee, and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
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<PAGE>
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
Section 1.4 Rules of Construction.
---------------------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(c) 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;
(d) the masculine gender includes the feminine and the neuter;
(e) when used with reference to the Securities, the expression "of
like tenor" refers to Securities of the same series; and
(f) references to agreements and other instruments include subsequent
amendments and waivers but only to the extent not prohibited by this Indenture.
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.
---------------
The definitive Securities 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 notations of Subsidiary Guarantees,
as the case may be, as evidenced by their execution of such Securities or
notations of Subsidiary Guarantees, as the case may be.
Securities (including the notations thereon relating to the Subsidiary
Guarantees, if any, 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 2.2 through 2.5
hereof (each being herein called a "Global Security") deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. To the extent required by
the rules and procedures of the Depository, Series A Securities initially issued
in reliance on Regulation S, Rule 144A or another exemption from the
registration requirements of the Securities Act shall be represented by separate
Global Securities. Subject to the limitation set forth in Section 3.1, the
principal amounts of the Global Securities may be increased or
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decreased from time to time by adjustments made on the records of the Trustee as
custodian for the Depository, as hereinafter provided.
Securities (including the notations thereon relating to the Subsidiary
Guarantees, if any, and the Trustee's certificate of authentication) exchanged
for beneficial interests in a Global Security as described in Section 3.6 shall
be issued in the form of permanent certificated securities in registered form in
substantially the form set forth in Sections 2.2 through 2.5 hereto ("Physical
Securities").
The Series A Securities and the Series B Securities, the notations
thereon relating to the Subsidiary Guarantees, if any, and the Trustee's
certificate of authentication shall be in substantially the respective forms set
forth in this Article, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, CUSIP or other 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 notations of Subsidiary Guarantees, as the case may be, as evidenced by their
execution of the Securities or notations of Subsidiary Guarantees, as the case
may be. Any portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Security. In
addition to the requirements of Section 2.3, the Securities may also have set
forth on the reverse side thereof a form of assignment and forms to elect
purchase by the Company pursuant to Section 10.16 or 10.17 hereof.
Section 2.2 Form of Face of Security.
------------------------
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER
JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE RE-OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT
THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN
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"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (a)(1), (2), (3) or (7)
UNDER THE SECURITIES ACT THAT IS AN INSTITUTIONAL INVESTOR ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE
SECURITIES OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR
OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER'S, THE INITIAL
PURCHASERS' AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.]/1/
NUEVO ENERGY COMPANY
9 3/8% Senior Subordinated Note due 2010, Series ____
No._____ $____________
CUSIP No. [670509AH1/U6698HAB9]
Nuevo Energy Company, 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 [(or such lesser
amount as may be shown on the Schedule of Exchanges attached hereto)]/2/ on
October 1, 2010, at the office or agency of the Company referred to below, and
to pay interest thereon, commencing on ____________________ and continuing
semiannually thereafter, on April 1 and October 1 in each year, from
____________________, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 9 3/8% 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 Securities 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
Company also promises to pay any Special Interest required by a Registration
Rights Agreement, upon the conditions, at the rates and for the periods
specified therein.]/3/ 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 Security (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 March 15 or
September 15 (whether or not a Business Day), as the case
------------------------------
/1/ This legend should only be included on a Transfer Restricted Security.
/2/ This clause should be included only in a Global Security.
/3/ This sentence should be included only in a Series A Security.
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<PAGE>
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
Securities, may be paid to the Person in whose name this Security (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
Securities 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 Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture. [Accrued but unpaid interest on any Series A
Security that is exchanged for a Series B Security pursuant to an Exchange Offer
should be paid on the first Interest Payment Date on the Series B
Securities.]/4/
Payment of the principal of (and premium, if any, on) and interest on this
Security 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 payment of public and
private debts; provided, however, that payment of interest may be made on
Physical Securities at the option of the Company on or before the due date by
check mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this Security 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 Security
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.
[SEAL] NUEVO ENERGY COMPANY
By:________________________________
Title:
Attest:
_____________________________
Title:
---------------------------
/4/ This sentence should be included only in a Series A Security.
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<PAGE>
Section 2.3 Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company designated as its 9 3/8% Senior Subordinated Notes due 2010, Series ___
(herein called the "Series ___ Securities" and, together with the Series ___
Securities, the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $300,000,000 at
any time Outstanding, which may be issued under an indenture (herein called the
"Indenture") dated as of September 26, 2000, between the Company and State
Street Bank and Trust Company (herein called the "Trustee," which term includes
any successor trustee under the Indenture), 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, any Subsidiary Guarantors party thereto, the Trustee
and the Holders of the Securities, and of the terms upon which the Securities
are, and are to be, authenticated and delivered.
The Indebtedness evidenced by the Securities 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 (as defined in
the Indenture) and this Security is issued subject to such provisions. Each
Holder of this Security, 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 Securities are subject to redemption, at the option of the Company,
in whole or in part, at any time on or after October 1, 2005, 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 October 1, of the years indicated below:
<TABLE>
<CAPTION>
Redemption
Year Price
---- -----
<S> <C>
2005................................................. 104.6875
2006................................................. 103.1250
2007................................................. 101.5625
2008 and thereafter.................................. 100.000%
</TABLE>
together in the case of any such redemption with accrued and unpaid interest, if
any, to the Redemption Date, all as provided in the Indenture.
Notwithstanding the foregoing, prior to October 1, 2003 the Company may,
at any time or from time to time, redeem up to 33 1/3% of the aggregate
principal amount of the Securities originally issued (excluding, for this
purpose, any Securities issued in exchange for Series A Securities) at a
Redemption Price of 109.375% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Redemption Date, with the net proceeds of one or
more Equity Offerings of the Company, provided that at least 66 2/3% of the
aggregate principal amount of the Securities originally issued (excluding, for
this purpose, any Series B Securities issued in exchange for Series A
Securities) remains Outstanding after the occurrence of such redemption and
provided, further, that such
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<PAGE>
redemption shall occur not later than 90 days after the date of the closing of
any such Equity Offering.
In the case of any redemption of Securities, interest installments whose
Stated Maturity is on or prior to the Redemption Date will be payable to Holders
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Date referred to on the face hereof.
Securities (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.
The Securities 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 mailing of a notice of the occurrence of a
Change of Control of the Company, all of the then Outstanding Securities 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 Securities at a purchase price equal to 100% of the
principal amount of the Securities, together with accrued and unpaid interest to
the Net Proceeds Payment Date.
Holders of Securities that are the subject of an offer to purchase their
securities from the Company may elect to have such Securities purchased by
completing the form entitled "Option of Holder to Elect Purchase" below.
As set forth in the Indenture, an Event of Default is generally (i)
failure to pay principal upon maturity, redemption or otherwise (including
pursuant to a Change of Control Offer or a Net Proceeds Offer); (ii) default for
30 days in payment of interest on any of the Securities; (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 60 days after notice to
comply with any other covenants in the Indenture, any Subsidiary Guarantee or
the Securities; (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 (or
$40,000,000 in the case of Non-Recourse Purchase Money Indebtedness); (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
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,
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<PAGE>
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 Securities may
declare the principal amount of all the Securities 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 the Securities 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 such Event of Default and any consequential
acceleration of the Securities 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
Securities, 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 Security by the Holder thereof. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Outstanding Securities 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 Security 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 Security.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and any Subsidiary Guarantors and the rights of the Holders under the
Indenture at any time by the Company, such Subsidiary Guarantors and the Trustee
with the consent of the Holders of a majority in aggregate principal amount of
the Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, 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 Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security 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 Security. Without the consent of any Holder, the
Company, any Subsidiary Guarantors and the Trustee may amend or supplement the
Indenture or the Securities to cure any ambiguity, defect or inconsistency, to
add or release any Subsidiary Guarantor pursuant to the Indenture, to provide
for uncertificated Securities in addition to or in place of certificated
Securities 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 Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any, on)
and interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
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<PAGE>
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable on the Security
Register of the Company, upon surrender of this Security 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 Securities, of like tenor and of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities 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 Securities
are exchangeable for a like aggregate principal amount of Securities of like
tenor and 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 Securities, 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 Security 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 Securities 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 Security 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 Security with
the notation of Subsidiary Guarantee endorsed hereon.
Prior to the time of due presentment of this Security for registration of
transfer, the Company, any Subsidiary Guarantors, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not this Security is
overdue, and neither the Company, any Subsidiary Guarantors, the Trustee nor any
agent shall be affected by notice to the contrary.
All terms used in this Security 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 1021 Main Street, Suite 2100, Houston,
Texas 77002.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders thereof. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identifying information
printed hereon.
Interest on this Security shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
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This Security shall be governed by and construed in accordance with the
laws of the State of New York.
Assignment Form
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Security on the books of the Company. The agent may substitute
another to act for him.
______________________________________________________________________________
Date:_____________________
Your Signature:_______________________________
(Sign exactly as your name appears on the
face of this Security)
Signature Guarantee:__________________________
(By an institution that is a
member of the Signature
Guarantee Medallion program)
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<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Security purchased by the Company
pursuant to Section 10.16 or 10.17 of the Indenture, check the box below:
Section 10.16 Section 10.17
If you want to elect to have only part of the Security purchased by the
Company pursuant to Section 10.16 or Section 10.17 of the Indenture, state the
amount you elect to have purchased: $___________
Date: _______________________
Your Signature:__________________________________
(Sign exactly as your name appears on the face
of the Security)
Soc. Sec. or Tax Identification No.:_____________
Signature Guarantee:_____________________________
(By an institution that is a
member of the Signature
Guarantee Medallion program)
SCHEDULE OF EXCHANGES OF SECURITIES/5/
The following exchanges of a part of this Global Security for other Securities
have been made:
<TABLE>
<CAPTION>
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease (or Security
Exchange Security Security increase) Custodian
------------ -------------------- -------------------- -------------------- -------------------
<S> <C> <C> <C> <C>
</TABLE>
Section 2.4 Form of Notation Relating to Subsidiary Guarantees.
--------------------------------------------------
The form of notation to be set forth on each Security relating to the
Subsidiary Guarantees, if any, shall be in substantially the following form:
SUBSIDIARY GUARANTEES
Subject to the limitations set forth in the Indenture, all Subsidiary
Guarantors (as defined in the Indenture referred to in the Security upon which
this notation is endorsed and each being hereinafter referred to as a
"Subsidiary Guarantor," which term includes any successor Subsidiary Guarantor
under the Indenture) that may become party to the Indenture after the execution
and delivery thereof, have, jointly and severally, unconditionally guaranteed
(a) the due and punctual payment of the principal (and
---------------------------
5. This should be included only if the Security is issued in global
form.
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<PAGE>
premium, if any) of and interest on the Securities, whether at maturity,
acceleration, redemption or otherwise, (b) the due and punctual payment of
interest on the overdue principal of and interest on the Securities, 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 Securities or any of 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.
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 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 XIII 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
Securities 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 Security 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 Security 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 Security upon which the
foregoing Subsidiary
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<PAGE>
Guarantees are noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
[Subsidiary Guarantors]
By:______________________________
Section 2.5 Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:______________ State Street Bank and Trust Company, as Trustee
By:______________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.
---------------
The aggregate principal amount of Series A Securities which may be
authenticated and delivered under this Indenture for original issue on the Issue
Date is limited to $150,000,000 (such Series A Securities being herein called
the "Offered Securities"), and from time to time after the Issue Date up to an
additional $150,000,000 aggregate principal amount of Series A Securities may be
issued, authenticated and delivered hereunder. The aggregate principal amount
of Series B Securities which may be authenticated and delivered under this
Indenture for original issue is limited to $150,000,000. The aggregate
principal amount of Securities Outstanding at any one time may not exceed
$300,000,000 except as provided in Section 3.7 hereof.
The Series A Securities shall be known and designated as the "9 3/8%
Senior Subordinated Notes due 2010, Series A" of the Company. Their Stated
Maturity shall be October 1, 2010, and they shall bear interest at the rate of 9
3/8% per annum from the date of their original issuance, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually on April 1 and October 1 in each year, commencing, in the
case of the Offered Securities, April 1, 2001, and at said Stated Maturity,
until the principal thereof is paid or duly provided for.
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<PAGE>
The Series B Securities shall be known and designated as the "9 3/8%
Senior Subordinated Notes due 2010, Series B" of the Company. Their Stated
Maturity shall be October 1, 2010, and they shall bear interest at the rate of 9
3/8% per annum from the date of their original issuance, or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
payable semiannually on April 1 and October 1 in each year, commencing on the
first April 1 or October 1 following the original issuance of the Series B
Securities, and at said Stated Maturity, until the principal thereof is paid or
duly provided for.
Upon the occurrence of a Registration Default, the interest rate on
Transfer Restricted Securities shall increase ("Special Interest"), with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, by 0.50% per annum and shall increase by an additional
0.25% per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of 1.0% per annum
with respect to all Registration Defaults. Following the cure of a Registration
Default, the accrual of Special Interest with respect to such Registration
Default shall cease and upon the cure of all Registration Defaults the interest
rate shall revert to the original rate. Any Special Interest due on any
Security shall be payable on the appropriate Interest Payment Date to the Holder
entitled to receive the interest payment to be made on such date. Each
obligation to pay Special Interest shall be deemed to accrue from and including
the date of the first applicable Registration Default to but excluding the date
on which all Registration Defaults have been cured.
Accrued but unpaid interest on any Series A Security that is exchanged
for a Series B Security pursuant to a Registration Rights Agreement shall be
paid on the first Interest Payment Date on the Series B Securities.
The Series A Securities and the Series B Securities shall be considered
collectively to be a single class for all purposes of this Indenture, including,
without limitation, waivers, amendments, redemptions and offers to purchase.
As provided in the applicable Registration Rights Agreement and subject
to the limitations set forth therein, at the option of the Holders, the Series A
Securities shall be exchangeable for Series B Securities of like aggregate
principal amount pursuant to an Exchange Offer.
The principal of (and premium, if any, on) and interest on the Securities
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 Securities by check mailed on or
before the due date to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register.
The Securities shall be redeemable as provided in Article XI hereof.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article XII hereof.
The Securities shall be guaranteed by the Subsidiary Guarantors, if any,
as provided in Article XIII hereof.
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<PAGE>
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIV hereof.
Section 3.2 Denominations.
-------------
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President or a Vice President of the Company, under its
corporate seal reproduced thereon and attested by its Secretary or an Assistant
Secretary of the Company. The signature of any of these officers on the
Securities may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Securities.
Securities 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.
At any time after the execution and delivery of this Indenture, the
Company may deliver Series A Securities executed by the Company (and if at such
time there are any Subsidiary Guarantors, then having the notations of
Subsidiary Guarantees executed by such Subsidiary Guarantors) to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Series A Securities, and the Trustee in accordance with such
Company Order shall authenticate and deliver such Series A Securities with the
notations of Subsidiary Guarantees, if any, thereon as provided in this
Indenture. Such Company Order shall specify the principal amount of the Series
A Securities to be authenticated and the date on which the original issue of
Series A Securities is to be authenticated. In addition, on or prior to the
date of consummation of any Exchange Offer, the Company may deliver Series B
Securities executed by the Company (and if at such time there are any Subsidiary
Guarantors, then having the notations of Subsidiary Guarantees executed by such
Subsidiary Guarantors) to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Series B Securities,
and the Trustee in accordance with such Company Order shall authenticate and
deliver such Series B Securities with the notations of Subsidiary Guarantees, if
any, thereon as provided in this Indenture. Such Company Order shall specify
the principal amount of the Series B Securities to be authenticated and the date
on which the Series B Securities are to be exchanged for an equal principal
amount of Series A Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security
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<PAGE>
shall be conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder and is entitled to the benefits of
this Indenture.
In case the Company, pursuant to and in compliance with Article VIII
hereof, shall be consolidated or merged with or into any other Person or shall
sell, convey, transfer, lease or otherwise dispose of all or substantially all
of its Properties to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a sale, conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article VIII hereof,
any of the Securities authenticated or delivered prior to such sale,
consolidation, merger, conveyance, transfer, lease or other disposition may,
from time to time, at the request of the successor Person be exchanged for other
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Securities as specified in such request for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
Section 3.4 Temporary Securities.
--------------------
Pending the preparation of definitive Securities, 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 (and if at
such time there are any Subsidiary Guarantors, then having the notations of
Subsidiary Guarantees thereon) and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
(and notations of Subsidiary Guarantees, if any) may determine, as conclusively
evidenced by their execution of such Securities (and notations of Subsidiary
Guarantees, if any).
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2
hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of like tenor and of authorized denominations (and if at
such time there are any Subsidiary Guarantors, then having the notations of
Subsidiary Guarantees thereon). Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 3.5 Registration of Transfer and Exchange.
-------------------------------------
The Company shall cause to be kept a register (the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for
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<PAGE>
the registration of Securities and of transfers of Securities. The Security
Register shall be in written form or any other form capable of being converted
into written form within a reasonable time. At all reasonable times and during
normal business hours, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Security Registrar") for the purpose of registering Securities and transfers of
Securities as herein provided.
Subject to the provisions of this Section 3.5 and Section 3.6 hereof,
upon surrender for registration of transfer of any Security at the office or
agency of the Company designated pursuant to Section 10.2 hereof, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of like
tenor and of any authorized denominations and of a like aggregate principal
amount, each such Security having the notation of Subsidiary Guarantees thereon
if there are then any Subsidiary Guarantors.
Furthermore, any Holder of a Global Security shall, by acceptance of such
Global Security, be deemed to have agreed that transfers of beneficial interests
in such Global Security may be effected only through a book-entry system
maintained by the Depository (or its agent), and that ownership of a beneficial
interest in a Global Security shall be required to be reflected in a book entry.
At the option of any Holder, Securities may be exchanged for other
Securities of like tenor or of any authorized denomination and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
the office or agency of the Company designated pursuant to Section 10.2 hereof.
Further, at the option of any Holder, Series A Securities may be exchanged,
pursuant to an Exchange Offer and subject to the terms and conditions thereof,
for Series B Securities of like aggregate principal amount, upon surrender of
the Series A Securities to be exchanged at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, the
Subsidiary Guarantors, if any, shall execute notations of Subsidiary Guarantees
on, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees noted thereon, if any,
issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company and the respective Subsidiary Guarantors, if
any, 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 Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) 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. As a special
condition to registration of transfer or exchange of any Transfer Restricted
Securities involving removal of a Private Placement Legend (other than pursuant
to an effective registration statement under the Securities Act), the Holder
requesting such registration of transfer or exchange shall furnish the Opinion
of Counsel called for by Section 3.12 hereof. The following additional special
conditions shall apply to the indicated types of transfers or exchanges:
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(a) Respecting any requested registration of transfer or exchange of
Transfer Restricted Securities in the form of Physical Securities, such Physical
Securities shall be accompanied, in the sole discretion of the Company, by the
following additional information and documents, as applicable:
(1) if such Physical Security is being delivered to the Security
Registrar by a Holder for registration in the name of such Holder, without
transfer, a certification from such Holder to that effect (in substantially
the form of Exhibit B hereto); or
(2) if such Physical Security is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A, a certification to that
effect (in substantially the form of Exhibit B hereto); or
(3) if such Physical Security is being transferred to an Institutional
Accredited Investor, delivery of a certification to that effect (in
substantially the form of Exhibit B hereto), a Transferee Certificate for
Institutional Accredited Investors in the form of Exhibit C hereto and an
Opinion of Counsel to the effect that such transfer is in compliance with
the Securities Act; or
(4) if such Physical Security is being transferred in reliance on
Regulation S, delivery of a certification to that effect (substantially in
the form of Exhibit B hereto), a Transferor Certificate for Regulation S
Transfers in the form of Exhibit D hereto and an Opinion of Counsel to the
effect that such transfer is in compliance with the Securities Act; or
(5) if such Physical Security is being transferred in reliance on Rule
144, delivery of a certification to that effect (substantially in the form
of Exhibit B hereto) and an Opinion of Counsel to the effect that such
transfer is in compliance with the Securities Act; or
(6) if such Physical Security is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (in substantially the form of Exhibit B
hereto) and an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act.
Any Physical Security issued upon any such registration of transfer or exchange
shall be in a minimum principal amount of $250,000.
(b) Respecting any requested exchange of a Physical Security for a
beneficial interest in a Global Security, such Physical Security shall be
accompanied, in the sole discretion of the Company, by the following additional
information and documents:
(1) a certification, substantially in the form of Exhibit B hereto,
that such Physical Security is being transferred to a Person reasonably
believed to be a Qualified Institutional Buyer; and
(2) written instructions directing the Security Registrar to make, or
to direct the Depository to make, an endorsement on the Global Security to
reflect an
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<PAGE>
increase in the aggregate amount of the Securities represented by the
Global Security;
whereupon the Security Registrar shall cancel such Physical Security and cause,
or direct the Depository to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Security Registrar, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Security is then outstanding, the
Company shall issue and the Trustee shall upon Company Order authenticate a new
Global Security in the appropriate amount.
(c) With the prior approval of the Company, any Person having a
beneficial interest in a Global Security may upon request to the Security
Registrar exchange such beneficial interest for a Physical Security. Upon
receipt by the Security Registrar of written instructions (or such other form of
instructions as is customary for the Depository) from the Depository or its
nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Security Registrar of a written order or such
other form of instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest containing
registration instructions and, in the case of any such transfer or exchange of a
beneficial interest in Transfer Restricted Securities, the following additional
information and documents:
(1) if such beneficial interest is being transferred to the Person
designated by the Depository as being the beneficial owner, a certification
from such Person to that effect (in substantially the form of Exhibit B
hereto); or
(2) if such beneficial interest is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A under the Securities Act,
a certification to that effect (in substantially the form of Exhibit B
hereto); or
(3) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a certification to that
effect (substantially in the form of Exhibit B hereto), a Transferee
Certificate for Institutional Accredited Investors in the form of Exhibit C
hereto and an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act; or
(4) if such beneficial interest is being transferred in reliance on
Regulation S, delivery of a certification to that effect (substantially in
the form of Exhibit B hereto), a Transferor Certificate for Regulation S
Transfers in the form of Exhibit D hereto and an Opinion of Counsel to the
effect that such transfer is in compliance with the Securities Act; or
(5) if such beneficial interest is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to that
effect (substantially in the form of Exhibit B hereto) and an Opinion of
Counsel to the effect that such transfer is in compliance with the
Securities Act; or
(6) if such beneficial interest is being transferred in reliance on
another exemption from the registration requirements of the Securities Act,
a certification to that effect (in substantially the form of Exhibit B
hereto) and an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act,
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<PAGE>
then the Security Registrar will cause, in accordance with the standing
instructions and procedures existing between the Depository and the Security
Registrar, the aggregate principal amount of the Global Security to be reduced
and, following such reduction, the Company will execute and, upon receipt of a
Company Order, the Trustee will authenticate and deliver to the transferee a
Physical Security. Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 3.5(c) shall be registered in such
names and in such authorized denominations as the Depository, pursuant to
instructions from Agent Members or otherwise, shall instruct the Security
Registrar in writing; provided, however, that any Transfer Restricted Security
shall be issued in a minimum denomination of $250,000. The Security Registrar
shall deliver such Physical Securities to the Persons in whose names such
Physical Securities are so registered.
No service charge shall be made for any registration of transfer or
exchange or redemption 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 exchanges pursuant to an Exchange Offer or Section 3.4, 9.6 or 11.8 hereof
not involving any transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, register the transfer of or exchange any Physical
Security during a period beginning at the opening of business 15 days before the
mailing of a notice of redemption of Securities selected for redemption under
Section 11.4 hereof and ending at the close of business on the day of such
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Physical Security so selected for redemption in whole or in
part, except the unredeemed portion of any Physical Security being redeemed in
part.
Section 3.6 Book-Entry Provisions for Global Securities.
-------------------------------------------
Each Global Security shall (i) be registered in the name of the
Depository for such Global Security or the nominee of such Depository, (ii) be
delivered to the Trustee as custodian for such Depository and (iii) bear the
legend set forth in Exhibit A hereto.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under such
Global Security, and the Depository may be treated by the Company, the
Subsidiary Guarantors, if any, the Trustee and any agent of the Company, the
Subsidiary Guarantors, if any, or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Subsidiary Guarantors, if any, the
Trustee or any agent of the Company, the Subsidiary Guarantors, if any, 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 Security.
Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depository, its successors or
their respective nominees. Interests of beneficial owners in a Global Security
may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 3.5 hereof.
In addition, Physical Securities shall be transferred to all
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beneficial owners in exchange for their beneficial interests in a Global
Security if, and only if, either (1) the Depository notifies the Company that it
is unwilling or unable to continue as depositary for the Global Security and a
successor depositary is not appointed by the Company within 90 days of such
notice, or (2) an Event of Default has occurred and is continuing and the
Security Registrar has received a request from the Depository to issue Physical
Securities in lieu of all or a portion of the Global Security (in which case the
Company shall deliver Physical Securities within 30 days of such request).
In connection with the transfer of an entire Global Security to
beneficial owners pursuant to this Section, the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall upon Company Order authenticate and deliver, to
each beneficial owner identified by the Depository, in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.
The Holder of the Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
Section 3.7 Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If (i) any mutilated Security is surrendered to the Trustee or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, the Subsidiary Guarantors, if any, and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute, the Subsidiary
Guarantors, if any, shall execute the notation of Subsidiary Guarantees, and
upon Company Order the Trustee shall authenticate and deliver, in exchange for
any such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, having the notation
of Subsidiary Guarantees thereon if at such time there are any Subsidiary
Guarantors, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security 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.
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 fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the respective Subsidiary
Guarantors, if any, whether or not the mutilated, destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Securities of like tenor duly issued hereunder.
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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.
Section 3.8 Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any 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 such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2
hereof.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") may be
paid by the Company, at its election in each case, as provided in clause (a) or
(b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (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 Security 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, and such
money when deposited shall 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 given in the
manner provided for in Section 15.5 hereof, 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 given, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (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 (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the 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.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or 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 3.9 Persons Deemed Owners.
---------------------
Prior to the due presentment of a Security for registration of transfer,
the Company, the Subsidiary Guarantors, if any, the Security Registrar, the
Trustee and any agent of the Company, the Subsidiary Guarantors, if any, or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of (and
premium, if any, on) and (subject to Section 3.8 hereof) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Subsidiary Guarantors, if any, the
Security Registrar, the Trustee or any agent of the Company, the Subsidiary
Guarantors, if any, or the Trustee shall be affected by notice to the contrary.
Section 3.10 Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. 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 canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order or in accordance
with the Trustee's usual practice; provided, however, that the Trustee shall not
be required to destroy canceled Securities.
Section 3.11 Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Section 3.12 Private Placement Legend.
------------------------
(a) All Transfer Restricted Securities shall bear the Private
Placement Legend upon the original issuance thereof. Upon the transfer, exchange
or replacement of Securities bearing the Private Placement Legend, the Security
Registrar shall deliver only Securities that bear the Private Placement Legend
unless, and the Trustee is hereby authorized to deliver Securities without the
Private Placement Legend if, (i) there is delivered to the Trustee an Opinion of
Counsel to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act or (ii) such Security has been sold pursuant to an effective
registration statement under the Securities Act. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the Security
Registrar shall deliver Securities that do not bear the Private Placement
Legend.
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(b) Notwithstanding the provisions of the preceding paragraph of this
Section 3.12, the Private Placement Legend on any Transfer Restricted Security
shall be removed upon the request of the Holder thereof upon delivery of such
Security to the Security Registration for exchange at any time after the Resale
Restriction Termination Date.
(c) By its acceptance of any Security bearing the Private Placement
Legend, each Holder of such a Security acknowledges the restrictions on transfer
of such Security set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Security only as provided in this
Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of
Securities, as expressly provided for in this Indenture) as to all Outstanding
Securities, and the Trustee, at the expense of the Company, shall, upon payment
of all amounts due the Trustee under Section 6.6 hereof, execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
(a) either
(1) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 3.7 hereof and (ii) Securities
for whose payment money or United States governmental obligations of the
type described in clause (i) of the definition of Cash Equivalents have
theretofore been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 10.3 hereof)
have been delivered to the Trustee for cancellation, or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of clause (2)(i), (2)(ii) or (2)(iii) above,
has irrevocably deposited or caused to be deposited with the Trustee funds
in an amount sufficient to pay and discharge the entire indebtedness on
such Securities
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not theretofore delivered to the Trustee for cancellation, for principal
(and premium, if any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be, together with instructions from the
Company irrevocably directing the Trustee to apply such funds to the
payment thereof at maturity or redemption, as the case may be;
(b) the Company has paid or caused to be paid all other sums then due
and payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, which, taken together, state that all conditions
precedent herein relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.6 hereof and, if money
shall have been deposited with the Trustee pursuant to this Section, the
obligations of the Trustee under Section 4.2 hereof and the last paragraph of
Section 10.3 hereof shall survive.
Section 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3 hereof,
all money deposited with the Trustee pursuant to Section 4.1 hereof shall be
held in trust and applied by it, in accordance with the provisions of the
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 Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
ARTICLE V
REMEDIES
Section 5.1 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 XIV 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):
(a) default in the payment of the principal of or premium, if any, on
any of the Securities 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
(b) default in the payment of any installment of interest on any of
the Securities, when it becomes due and payable, and the continuance of such
default for a period of 30 days; or
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(c) 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 10.16 or the failure to make or
consummate a Net Proceeds Offer in accordance with the provisions of Section
10.17; or
(d) failure of the Company or any Subsidiary Guarantor to comply with
any other term, covenant or agreement contained in the Securities, any
Subsidiary Guarantee or this Indenture (other than a default specified in
subparagraph (a), (b) or (c) above) for a period of 60 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 (x) to the Company by the Trustee or (y) to the Company
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Securities then Outstanding; or
(e) 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 Securities) 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 $40,000,000 in the case of Non-
Recourse Purchase Money Indebtedness); or
(f) 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
(g) 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
(h) 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 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
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(i) 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 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 taking of corporate action by the Company or any
Material Subsidiary in furtherance of any such action.
Section 5.2 Acceleration of Maturity: Rescission and Annulment.
--------------------------------------------------
If any Event of Default (other than an Event of Default specified in
Section 5.1(h) or (i) hereof) occurs and is continuing, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities
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
Securities 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
Securities to be due and payable immediately, upon which declaration all amounts
payable in respect of the Securities shall be immediately due and payable. If an
Event of Default specified in Section 5.1(h) or (i) hereof occurs and is
continuing, 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 Securities Outstanding, by written notice to
the Company, the Subsidiary Guarantors, if any, and the Trustee, may rescind and
annul such declaration and its consequences if
(a) the Company or any Subsidiary Guarantor has paid or deposited with
the Trustee a sum sufficient to pay,
(1) all overdue interest on all Outstanding Securities,
(2) all unpaid principal of (and premium, if any, on) any Outstanding
Securities which have become due otherwise than by such declaration of
acceleration, including any Securities required to have been purchased on a
Change of Control Purchase 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 Securities,
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(3) to the extent that payment of such interest is lawful, interest on
overdue interest and overdue principal at the rate borne by the Securities
(without duplication of any amount paid or deposited pursuant to clauses
(1) and (2) above), and
(4) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
(b) 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
(c) all Events of Default, other than the non-payment of amounts of
principal of (or premium, if any, on) or interest on Securities which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13 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 5.1(e) 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 Securities, and so long as
such rescission of any such acceleration of the Securities does not conflict
with any judgment or decree as certified to the Trustee by the Company.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if
(a) default is made in the payment of any installment of interest on
any Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof or with respect to any Security
required to have been purchased by the Company on the Change of Control Purchase
Date or the Net Proceeds Payment Date pursuant to a Change of Control Offer or
Net Proceeds Offer, as applicable, the Company will, upon demand of the Trustee,
pay to the Trustee for the benefit of the Holders of such Securities, the whole
amount then due and payable on such
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Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Securities, 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 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 the Securities and collect the
money adjudged or decreed to be payable in the manner provided by law out of the
Property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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 5.4 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, any Subsidiary Guarantor or any
other obligor upon the Securities, their creditors or the Property of the
Company, any Subsidiary Guarantor or of such other obligor, the Trustee
(irrespective of whether the principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company, the Subsidiary
Guarantors, if any, or such other obligor for the payment of overdue principal,
premium, if any, or interest) 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 (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents and take any other actions including
participation as a full member of any creditor or other committee 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) subject to Article XIV, to collect and receive any money or other
Property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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 the
Trustee any amount due to it for the
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reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.6
hereof.
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 Subsidiary Guarantees, if any, 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
proceeding.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities or
the Subsidiary Guarantees, if any, may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name and 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 in
respect of which such judgment has been recovered.
Section 5.6 Application of Money Collected.
------------------------------
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 the case of the distribution of such money on account of principal (or
premium, if any) or interest, upon presentation of the Securities 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 6.6
hereof;
SECOND: subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of (and premium, if any, on) and interest on the
Securities 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 for principal (and premium, if any)
and interest, respectively; and
THIRD: subject to Article XIV, the balance, if any, to the Company.
Section 5.7 Limitation on Suits.
-------------------
No Holder of any Securities 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
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities 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;
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(c) 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;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or more in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal Premium
-----------------------------------------------------------
and Interest.
------------
Notwithstanding any other provision in this Indenture (but subject to
Articles XIII and XIV hereof), the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment, as provided herein
(including, if applicable, Article XII hereof) and in such Security of the
principal of (and premium if any, on) and (subject to Section 3.8 hereof)
interest on, such Security on the respective Stated Maturities expressed in such
Security (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 5.9 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 Subsidiary Guarantors, if any, the Trustee and
the Holders shall be restored severally and respectively to their former
positions hereunder and thereunder and all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.7 hereof, 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
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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 5.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security 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.
Section 5.12 Control by Holders.
------------------
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities 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, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders not joining therein.
Section 5.13 Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any existing Default or Event of Default hereunder and its consequences,
except a Default or Event of Default,
(a) in respect of the payment of the principal of (or premium, if any,
on) or interest on any Security, or
(b) in respect of a covenant or provision hereof which under Article
IX hereof cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected thereby.
Upon any such waiver, such Default or Event of Default shall cease to
exist for every purpose under this Indenture, but no such waiver shall extend to
any subsequent or other fault or Event of Default or impair any right consequent
thereon. Any such waiver may (but need not) be given in connection with a tender
offer or exchange offer for the Securities.
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Section 5.14 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Company and the Subsidiary Guarantors, if any, covenants (to
the extent that each may lawfully do so) that it will not at any time insist
upon, plead or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension, or usury law or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company or any
Subsidiary Guarantor from paying all or any portion of the principal of
(premium, if any, on) or interest on the Securities as contemplated herein, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) each of the Company and the Subsidiary
Guarantors, if any, hereby expressly waives all benefit or advantage of any such
law, and covenant that they 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 VI
THE TRUSTEE
Section 6.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) 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
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, and shall be fully protected in so relying, 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; provided, however, the
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph shall not limit the effect of Section 6.1(b);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
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(iii) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.12.
Section 6.2 Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.1 hereof:
(a) the Trustee may conclusively 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, 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;
(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, 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 reasonably 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;
(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;
(h) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture; and
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(i) the Trustee shall not be deemed to have notice or knowledge of any
matter unless a Responsible Officer has actual knowledge thereof or unless
written notice thereof is received by the Trustee at its Corporate Trust Office
and such notice references the Securities generally, the Company or this
Indenture.
The Trustee shall not be required to advance, 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.
Section 6.3 Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Securities.
----------
The recitals contained herein and in the Securities and the notations of
Subsidiary Guarantees thereon, if any, except for the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Subsidiary Guarantors, as the case may be, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture, the Subsidiary Guarantees, if
any, or the Securities, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. The Trustee shall not be accountable for
the use or application by the Company of any Securities or the proceeds thereof.
Section 6.4 May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar or any other agent
of the Company, the Subsidiary Guarantors, if any, or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311 in the case of the Trustee, may
otherwise deal with the Company and the Subsidiary Guarantors, if any, with the
same rights it would have if it were not the Trustee, Paying Agent, Security
Registrar or such other agent.
Section 6.5 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 or any Subsidiary Guarantor.
Section 6.6 Compensation and Reimbursement.
------------------------------
The Company agrees:
(a) 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 provision of law in regard to the compensation of a trustee of an
express trust);
(b) 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
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reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to the Trustee's willful misconduct, negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without willful misconduct, negligence or
bad faith on its part, (i) arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder or (ii) in connection with
enforcing this indemnification provision.
The obligations of the Company under this Section 6.6 to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article XIV
hereof and shall constitute additional indebtedness hereunder and shall survive
the satisfaction and discharge of this Indenture or any other termination under
any Insolvency or Liquidation Proceeding. As security for the performance of
such obligations of the Company, the Trustee shall have a claim and lien prior
to the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for payment of principal of (and premium, if
any, on) or interest on particular Securities. Such lien shall survive the
satisfaction and discharge of this Indenture or any other termination under any
Insolvency or Liquidation Proceeding.
When the Trustee incurs expenses or renders services after the occurrence
of an Event of Default specified in paragraph (h) or (i) of Section 5.1 of this
Indenture, such expenses and the compensation for such services are intended to
constitute expenses of administration under any Insolvency or Liquidation
Proceeding.
Section 6.7 Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section 6.7, 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 6.8 Conflicting Interests.
---------------------
The Trustee shall comply with the provisions of Section 310(b) of the
Trust Indenture Act; provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) the Existing Indentures and any other
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
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Section 6.9 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 6.10 hereof.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.10 hereof shall not have been delivered to the 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.
(c) The Trustee may be removed at any time by Act of the Holders of
not less than a majority in aggregate principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) 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 6.7 hereof
and shall fail to resign 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
(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 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, or (ii) subject to TIA Section 315(e), 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 and the appointment of a successor Trustee.
(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, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the Company
or the Holders and accepted appointment in the manner hereinafter provided, 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
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appointment of a successor Trustee. The evidence of such successorship may, but
need not be, evidenced by a supplemental indenture.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Securities in the manner provided for in Section 15.5 hereof. Each notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
Section 6.10 Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of all amounts due
it under Section 6.6 hereof, 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 money
and other Property held by such retiring Trustee hereunder. 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.
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.
Section 6.11 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 of 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;
and in case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee;
and in all such cases such certificates shall have the full force which it is
anywhere in the Securities of like tenor or in this Indenture provided;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Securities in the name of any
predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 6.12 Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust
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Indenture Act regarding the collection of claims against the Company (or any
such other obligor).
Section 6.13 Notice of Defaults.
------------------
Within 60 days after the occurrence of any Default hereunder, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder 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, on) or interest
on any Security, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interest of the
Holders.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Holders' Lists; Holder Communications; Disclosures
--------------------------------------------------
Respecting Holders.
------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
the Holders. Neither the Company, any Subsidiary Guarantor nor the Trustee shall
be under any responsibility with regard to the accuracy of such list. If the
Trustee is not the Security Registrar, the Company shall furnish to the Trustee
semi-annually before each Regular Record Date, and at such other times as the
Trustee may reasonably request in writing, a list, in such form as the Trustee
may reasonably request, as of such date of the names and addresses of the
Holders then known to the Company. The Company and the Trustee shall also
satisfy any other requirements imposed upon each of them by TIA Section 312(a).
Holders may communicate pursuant to Section 312(b) of the TIA with other
Holders with respect to their rights under this Indenture or the Securities.
Every Holder of Securities, by receiving and holding the same, agrees
with the Company, the Subsidiary Guarantors, if any, the Security Registrar and
the Trustee that none of the Company, the Subsidiary Guarantors, if any, the
Security Registrar or the Trustee, or any agent of any of them, shall be held
accountable by reason of the disclosure of any information as to the names and
addresses of the Holders in accordance with TIA Section 312, regardless of the
source from which such information was derived, that each of such Persons shall
have the protection of TIA Section 312(c) and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
Section 7.2 Reports By Trustee.
------------------
Within 60 days after March 15 of each year commencing with March 15,
2001, the Trustee shall transmit by mail to the Holders, as their names and
addresses appear in the Security Register, a brief report dated as of such March
15 in accordance with and to the extent required under TIA Section 313(a). The
Trustee shall also comply with TIA Sections 313(b) and 313(c).
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The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
Commencing at the time this Indenture is qualified under the Trust
Indenture Act, a copy of each Trustee's report, at the time of its mailing to
Holders of Securities, shall be mailed to the Company and filed with the
Commission and each stock exchange, if any, on which the Securities are listed.
Section 7.3 Reports by Company.
------------------
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then the Company shall file with the Trustee such
information, documents or reports as required pursuant to Section 10.9 hereof;
(b) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(c) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports (without exhibits except to the extent required by TIA Section 313(c))
required to be filed by the Company pursuant to paragraph (a) or (b) of this
Section as may be required by rules and regulations prescribed from time to time
by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 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:
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(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 called 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 Securities and this Indenture, and, in each case, this Indenture shall
remain in full force and effect;
(b) 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;
(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
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 four-quarter period under Section 10.12 ending immediately prior to the
consummation of such 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 10.12
hereof;
(e) if the Company is not the continuing obligor under this Indenture,
then any Subsidiary Guarantor, unless it is the Surviving Entity, shall have by
supplemental indenture confirmed that its Subsidiary Guarantee of the Securities
shall apply to the Surviving Entity's obligations under this Indenture and the
Securities:
(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 10.15 hereof;
and
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(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 8.1(a)
have been satisfied.
Section 8.2 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 8.1 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 8.1 hereof), except in the case of a lease, shall be
discharged from all obligations and covenants under this Indenture and the
Securities, and the Company may be dissolved and liquidated and such dissolution
and liquidation shall not cause a Change of Control under clause (e) of the
definition thereof to occur unless the 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 to any
Person otherwise results in a Change of Control.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, each of the Subsidiary Guarantors, if any, when authorized by
a Board Resolution, and the Trustee upon Company Request, 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:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders, to provide any additional rights or benefits to the Holders or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default; or
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(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Sections 6.9
and 6.10 hereof; or
(e) 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 action shall not adversely affect the
interests of the Holders in any material respect; or
(f) to secure the Securities pursuant to the requirements of Section
10.15 hereof or otherwise; or
(g) to add any Restricted Subsidiary as a Subsidiary Guarantor as
provided in Section 10.13(a) hereof or to evidence the succession of another
Person to any Subsidiary Guarantor pursuant to Section 13.2(b) hereof and the
assumption by any such successor of the covenants and agreements of such
Subsidiary Guarantor contained herein, in the Securities and in the Subsidiary
Guarantee of such Subsidiary Guarantor; or
(h) to release a Subsidiary Guarantor from its Subsidiary Guarantee
pursuant to Section 13.3 hereof; or
(i) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(j) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2 Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities (which consent may, but need not,
be given in connection with any tender offer or exchange offer for the
Securities), by Act of said Holders delivered to the Company and the Trustee,
the Company, when authorized by a Board Resolution, each of the Subsidiary
Guarantors, if any, when authorized by a Board Resolution, and the Trustee upon
Company Request 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 of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(a) reduce the principal amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the Stated Maturity of the
principal of, or any installment of interest on, any Security or alter or waive
any of the provisions with respect to the redemption of the Securities, except
as provided below with respect to Sections 10.16 and 10.17 hereof;
(c) reduce the rate of or change the time for payment of interest,
including Defaulted Interest, on any Security;
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(d) waive a Default or Event of Default in the payment of principal of
or premium, if any, or interest on the Securities (except a rescission of
acceleration of the Securities by the Holders of at least a majority in
aggregate principal amount of the then Outstanding Securities and a waiver of
the payment default that resulted from such acceleration);
(e) make any Security payable in money other than that stated in the
Securities;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Securities to receive
payments of principal of, premium, if any, on or interest on the Securities;
(g) waive a redemption payment with respect to any Security (other
than a payment required by Section 10.16 or Section 10.17 hereof); or
(h) modify any provisions of this Indenture relating to the relative
ranking of the Securities or the Subsidiary Guarantees, if any, in a manner
adverse to the Holders thereof; or
(i) make any change in Section 5.8, 5.13 or 10.20 hereof or in the
foregoing amendment and waiver provisions.
It shall not be necessary for any Act of the 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 9.3 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 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 or
immunities under this Indenture or otherwise.
Section 9.4 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 9.5 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.
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Section 9.6 Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities 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 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, with the notations of Subsidiary Guarantees thereon executed by the
Subsidiary Guarantors, if there are then any Subsidiary Guarantors, and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
Section 9.7 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 9.2 hereof or (ii)
a waiver under Section 5.13 or 10.20 hereof becomes effective, the Company shall
give notice thereof to the Holders of each Outstanding Security affected, in the
manner provided for in Section 15.5 hereof, setting forth in general terms the
substance of such supplemental indenture or waiver, as the case may be.
Section 9.8 Effect on Senior Indebtedness.
-----------------------------
No supplemental indenture shall adversely affect the rights of the
holders of Senior Indebtedness under Article XIV hereof or the holders of
Guarantor Senior Indebtedness under Sections 13.8, 13.9, 13.10, 13.11, 13.13,
13.14, 13.15, 13.16 and 13.19 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.
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium, if any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders that it
will duly and punctually pay the principal of (and premium, if any, on) and
interest (including Special Interest) on the Securities in accordance with the
terms of the Securities and this Indenture. Principal, premium, if any, and
interest shall be considered paid on the date due if by 11:00 a.m., Eastern
time, on such date the Trustee or a Paying Agent (other than the Company or its
Affiliates, except any such Affiliate providing commercial banking services to
the Company or its Subsidiaries upon commercially reasonable terms in the
ordinary course of such Affiliate's business) holds in accordance with this
Indenture money sufficient to pay all principal, premium, if any, and interest
then due and the Trustee or such Paying Agent, as the case may be, is not
prohibited from paying such
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money to the Holders of Securities on that date pursuant to the terms of this
Indenture. The Company shall notify the Trustee and any Paying Agent immediately
upon the occurrence of any Registration Default and, with respect to Special
Interest payments pursuant to a Registration Rights Agreement, the Company shall
notify the Trustee and any Paying Agent prior to any Interest Payment Date of
the amount of Special Interest payable to each Holder.
Section 10.2 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities, the Subsidiary Guarantees and this
Indenture may be served. The Corporate Trust Office shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any 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, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation.
Further, if at any time there shall be no such office or agency in The City of
New York where the Securities may be presented or surrendered for payment, the
Company shall forthwith designate and maintain such an office or agency in The
City of New York, in order that the Securities shall at all times be payable in
The City of New York. (The office of State Street Bank and Trust Company
National Association, located at 61 Broadway, 15th floor, New York, New York
10006, is hereby designated as such agency.) The Company will give prompt
written notice to the Trustee of any such designation or rescission and any
change in the location of any such other office or agency.
Section 10.3 Money for Security Payments to Be Held in Trust.
-----------------------------------------------
If the Company shall at any time act as its own Paying Agent, it shall,
on or before 11:00 a.m., Eastern time, on each due date of the principal of (and
premium, if any, on) or interest on any of the Securities, 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 due until such sum
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 the
Securities, it will on or before 11:00 a.m., Eastern time, on each due date of
the principal of (and premium, if any, on), or interest on, any Securities,
deposit with a Paying Agent immediately available funds in a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such funds
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
shall promptly notify the Trustee of such action or any failure so to act.
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The Company shall cause each Paying Agent (other than the Trustee or
itself) 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:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any, on) or interest on Securities 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;
(b) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of principal
(and premium, if any) or interest; and
(c) 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.
Initially, the Company shall act as its own Paying Agent, and it shall be
deemed to have agreed with the Trustee that it will adhere to the agreement
described in the immediately preceding paragraph. Further, the Company shall
give the Trustee notice within 30 days of the making of any payment of principal
(and premium, if any) or interest hereunder by any Paying Agent (including the
Company if acting as its own Paying Agent, but excluding the Trustee), which
notice shall specify the amounts of principal (and premium, if any) and interest
so paid and, in the event of any payment of principal, the aggregate unpaid
principal amount of all Securities then Outstanding.
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 such 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 sums. The Trustee and each Paying Agent shall promptly pay to the Company
upon Company Request any money held by them (other than pursuant to Article XII)
at any time in excess of amounts required to pay principal of, premium, if any,
or interest on the Securities.
Subject to applicable escheat and abandoned property laws, 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, on) or interest
on any Security and remaining unclaimed for one year after such principal (and
premium, if any) or interest has become due and payable shall 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 shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in 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
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money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 10.4 Corporate Existence.
-------------------
Except as expressly permitted by Article VIII hereof, Section 10.17
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 10.5 Payment of Taxes and Other Claims.
---------------------------------
The Company shall, or, as applicable, shall cause its Restricted
Subsidiaries to, 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 Restricted
Subsidiary or upon the income, profits or Property of the Company or any
Restricted Subsidiary and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a Lien upon the Property of the
Company or any Restricted Subsidiary; provided, however, that the Company and
its Restricted Subsidiaries 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 and for which appropriate provision has been made in accordance with
GAAP.
Section 10.6 Maintenance of Properties.
-------------------------
The Company shall, or, as applicable, shall cause its Restricted
Subsidiaries to, 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 10.6
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.
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Section 10.7 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 insured
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.
Section 10.8 Statement by Officers as to Default.
-----------------------------------
(a) The Company shall deliver to the Trustee, within 120 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 10.8(a), such compliance shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
(b) The Company shall, so long as any of the Securities 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 10.9 Provision of Financial Information.
----------------------------------
The Company shall file on a timely basis with the SEC, 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
Securities (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
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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 Securities, securities analyst or prospective
purchaser of any Securities promptly upon written request given in accordance
with Section 15.4 hereof.
Section 10.10 Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take the following actions:
(i) declare or pay any dividend or make any distribution on
account 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);
(ii) purchase, redeem or otherwise acquire or retire for value
any Capital Stock of the Company or any Affiliate thereof (other than any
Wholly Owned Restricted Subsidiary) or any options, warrants or other
rights to acquire such Capital Stock;
(iii) 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
Subordinated Indebtedness, except that this clause (iii) shall not include
any such payment with respect to any such Subordinated Indebtedness (A) to
the extent of Excess Proceeds remaining after compliance with the
provisions of Section 10.17(c) hereof and (B) to the extent (and only to
the extent) required by the indenture or other agreement or instrument
pursuant to which such Subordinated Indebtedness was issued;
(iv) 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 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 of the Company); or
(v) make any Investment (other than any Permitted Investment);
(such payments or other actions described in (but not excluded from) clauses (i)
through (v) 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), (A) no Default or Event of
Default shall have occurred and be continuing, (B) the Company could incur $1.00
of additional Indebtedness (excluding Permitted
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Indebtedness) in accordance with Section 10.12 hereof and (C) the aggregate
amount of all Restricted Payments declared or made after the date of this
Indenture shall not exceed the sum (without duplication) of the following:
(1) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period beginning on July 1, 2000
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
(2) the aggregate net cash proceeds or the Fair Market Value of any
Property other than cash, received after the date of this Indenture by the
Company as capital contributions to the Company (other than from any
Restricted Subsidiary), plus
(3) the aggregate net cash proceeds or the Fair Market Value of any
Property other than cash, received after the date of this Indenture by the
Company from the issuance or sale (other than to any of its Restricted
Subsidiaries) of Qualified Capital Stock of the Company or any option,
warrants or rights to purchase such Qualified Capital Stock of the Company,
plus
(4) the aggregate net cash proceeds received after the date of this
Indenture by the Company (other than from any of its Restricted
Subsidiaries) upon the exercise of any options, warrants or rights to
purchase Qualified Capital Stock of the Company, plus
(5) the aggregate net cash proceeds received after the date of this
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
(6) the aggregate net cash proceeds or the Fair Market Value of any
Property other than cash, received (or deemed to have been received) after
the date of this Indenture by the Company or its Restricted Subsidiaries,
computed on a consolidated basis, constituting a return of capital on an
Investment (other than a Permitted Investment) made by the Company or any
Restricted Subsidiary after the date of this Indenture, plus
(7) $25,000,000.
(b) Notwithstanding paragraph (a) above, the Company and its
Restricted Subsidiaries may take the following actions so long as, at the time
thereof, no Default or Event of Default shall have occurred and be continuing
(except in the case of clause (i) below) and (in the case of clause (vi) below)
the Company could incur $1.00 of additional Indebtedness (excluding Permitted
Indebtedness) in accordance with Section 10.12 hereof:
(i) 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
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with the provisions of paragraph (a) 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 (a) above);
(ii) 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 issue and sale (other than to
a Restricted Subsidiary) of Qualified Capital Stock of the Company;
(iii) the repurchase, redemption, repayment, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness (other
than Redeemable Capital Stock) in exchange for or out of the aggregate net
cash proceeds of, a substantially concurrent issue and sale (other than to
a Restricted Subsidiary) of Qualified Capital Stock of the Company;
(iv) the purchase, redemption, repayment, defeasance or other
acquisition or retirement for value of 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,
Subordinated Indebtedness so long as (A) the principal amount of such new
Indebtedness does not exceed the principal amount (or, if such 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 subordinated to the Securities 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 Securities and (D) 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
Securities;
(v) the repurchase, redemption or other acquisition or
retirement for value of any Qualified Capital Stock of the Company or any
of its Subsidiaries held by any current or former officers, directors or
employees of the Company or any of its Subsidiaries pursuant to the terms
of agreements (including employment agreements) or plans approved by the
Company's Board of Directors, including any such repurchase, redemption,
acquisition or retirement of such Qualified Capital Stock that is deemed to
occur upon the exercise of stock options or similar rights if such shares
represent all or a portion of the exercise price or are surrendered in
connection with satisfying Federal income tax obligations; provided,
however, that the aggregate amount of such repurchases, redemptions,
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acquisitions and retirements shall not exceed the sum of (a) $1,000,000 in
any twelve-month period and (b) the aggregate net proceeds, if any,
received by the Company during such twelve-month period from any issuance
of such Qualified Capital Stock pursuant to such agreements or plans; and
(vi) the repurchase or other acquisition of any Qualified
Capital Stock of the Company in an amount not to exceed 50% of the net
after-tax gain from Specified Property Sales, less the aggregate purchase
price of Qualified Capital Stock purchased by the Company and its
Restricted Subsidiaries since June 8, 1998.
The actions described in clause (i) of this paragraph (b) shall be Restricted
Payments that shall be permitted to be taken in accordance with this paragraph
(b) but shall reduce the amount that would otherwise be available for Restricted
Payments under clause (C) of paragraph (a) (provided that any dividend paid
pursuant to clause (i) of this paragraph (b) shall reduce the amount that would
otherwise be available under clause (C) of paragraph (a) when declared, but not
also when subsequently paid pursuant to such clause (i)), and the actions
described in clauses (ii), (iii), (iv), (v) and (vi) of this paragraph (b) shall
be Restricted Payments that shall be permitted to be taken in accordance with
this paragraph (b) and shall not reduce the amount that would otherwise be
available for Restricted Payments under clause (C) of paragraph (a). 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 10.12 hereof.
(c) 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.
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Section 10.11 Limitation on Other Senior Subordinated Indebtedness.
----------------------------------------------------
The Company shall not incur (as such term is defined in Section 10.12
hereof), or permit to remain outstanding, any Indebtedness (including Acquired
Indebtedness and Permitted Indebtedness) other than the Securities, that is
subordinated in right of payment to any Senior Indebtedness, unless such
Indebtedness is also pari passu with, or subordinated in right of payment to,
the Securities pursuant to subordination provisions substantially similar to
those contained in this Indenture.
Section 10.12 Incurrence of Indebtedness.
--------------------------
(a) 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 at the time of
such event and after giving effect thereto on a pro forma basis: the
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.
(b) 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 10.12 hereof in addition to the amount of Indebtedness which it
guarantees.
Section 10.13 Subsidiary Guarantors.
---------------------
(a) The Company shall cause each Restricted Subsidiary, prior to, or
contemporaneously with, its incurrence of any obligations that guarantee or
secure any Pari Passu Indebtedness or Subordinated Indebtedness of the Company,
to execute and deliver a supplemental indenture to this Indenture, substantially
in the form of Exhibit E hereto, agreeing to be bound by its terms applicable to
a Subsidiary Guarantor and providing for a Subsidiary Guarantee of the
Securities by such Restricted Subsidiary.
(b) Notwithstanding the foregoing and the other provisions of this
Indenture, any Subsidiary Guarantee incurred by a Restricted Subsidiary pursuant
to this Section 10.13 shall provide by its terms that it shall be automatically
and unconditionally released and discharged upon the terms and conditions set
forth in Section 13.3 hereof.
Section 10.14 Limitation on Issuance and Sale of Capital Stock by
---------------------------------------------------
Restricted Subsidiaries.
-----------------------
The Company (a) shall not permit any Restricted Subsidiary to issue any
Capital Stock (other than to the Company or a Wholly Owned Restricted
Subsidiary) and (b) 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 (i) directors' qualifying shares, (ii)
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, (iii) a sale of all or substantially all the Capital Stock of a
Restricted Subsidiary effected in accordance with Section 10.17, (iv) Qualifying
TECONS and (v) the Capital Stock of a Restricted
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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 shall be treated as an
Investment for purposes of Section 10.10, if the amount of such Capital Stock
represents less than a majority of the Voting Stock of such Restricted
Subsidiary.
Section 10.15 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 now owned or acquired after the date of this Indenture, or any income or
profits therefrom to secure any Pari Passu Indebtedness or Subordinated
Indebtedness, unless prior to or contemporaneously therewith the Securities are
directly secured equally and ratably, provided that (1) 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 Securities and (2) if such secured Indebtedness is Subordinated
Indebtedness, the Lien securing such Subordinated Indebtedness shall be
subordinate and junior to the Lien securing the Securities at least to the same
extent as such Subordinated Indebtedness is subordinated to the Securities. The
foregoing covenant shall not apply to any Lien securing Acquired Indebtedness,
provided that any such Lien extends only to the Properties that were subject to
such Lien prior to the related acquisition by the Company or such Restricted
Subsidiary and was not created, incurred or assumed in contemplation of such
transaction.
Section 10.16 Purchase of Securities Upon Change of Control.
---------------------------------------------
(a) Upon the occurrence of a Change of Control, each Holder of
Securities shall have the right to require the Company to purchase such Holder's
Securities, in whole or in part, in a principal amount that is an integral
multiple of $1,000, pursuant to the offer described in Section 10.16(b) 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 purchase price, 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 Securities validly
tendered and not withdrawn under such Change of Control Offer.
(b) 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 15.5, a notice (the
"Change of Control Notice") prepared by the Company describing the transaction
or transactions that constitute the Change of Control and stating:
(i) that a Change of Control has occurred and a Change of
Control Offer is being made pursuant to this Section 10.16, and that all
Securities that are timely tendered will be accepted for payment;
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(ii) 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;
(iii) that any Securities or portions thereof not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price with respect thereto, all Securities 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;
(v) that any Holder electing to have any Securities or
portions thereof purchased pursuant to a Change of Control Offer will be
required to surrender such Securities, with the form to elect purchase by
the Company pursuant to this Section 10.16 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;
(vi) 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 Securities delivered for purchase, and a statement that
such Holder is withdrawing such Holder's election to have such Securities
or portions thereof purchased pursuant to the Change of Control Offer;
(vii) that any Holder electing to have Securities 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;
(viii) if Physical Securities have been issued pursuant to
Section 2.1, that any Holder of Physical Securities whose Physical
Securities are being purchased only in part will be issued new Physical
Securities equal in principal amount to the unpurchased portion of the
Physical Securities surrendered, which unpurchased portion will be equal in
principal amount to $1,000 or an integral multiple thereof; and
(ix) any other information necessary to enable any Holder to
tender Securities and to have such Securities purchased pursuant to this
Section 10.16.
If any of the Securities subject to a Change of Control Offer is in the form of
a Global Security, then the Company shall modify the Change of Control Notice to
the extent necessary to accord with the procedures of the Depository applicable
to repurchases.
(c) On the Change of Control Purchase Date, the Company shall (1)
accept for payment all Securities or portions thereof properly tendered pursuant
to the
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Change of Control Offer, (2) 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 Securities or
portions thereof so accepted and (3) deliver or cause to be delivered to the
Trustee the Securities so accepted together with an Officers' Certificate
stating the aggregate principal amount of Securities or portions thereof being
purchased by the Company. The Paying Agent shall promptly send, in the manner
provided in Section 15.5, to each Holder of Securities or portions thereof so
accepted for payment the Change of Control Purchase Price for such Securities 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
Purchase Date. For purposes of this Section 10.16, the Trustee shall act as the
Paying Agent.
(d) Upon surrender and cancellation of a Physical Security 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 Security a new Physical Security equal in
principal amount to the unpurchased portion of such surrendered Physical
Security; provided that each such new Physical Security shall be in a principal
amount of $1,000 or an integral multiple thereof.
(e) 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 Securities as described in this Section
10.16. To the extent that the provisions of any securities laws or regulations
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 10.16 by
virtue thereof.
(f) Prior to complying with the provisions of this Section 10.16, 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 Securities required by this Section 10.16.
Section 10.17 Disposition of Proceeds of Asset Sales.
--------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any Asset Sale unless (i) 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, (ii) all 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, Liquid
Securities or Exchanged Properties ("Permitted Consideration"); provided,
however, that the Company and its Restricted Subsidiaries shall be permitted to
receive any Property other than Permitted Consideration, so long as the
aggregate Fair Market Value (determined on the date of each Asset Sale) of such
Property other than Permitted Consideration received from Asset Sales and held
by the Company or any Restricted Subsidiary at any one time shall not exceed
10.0% of Adjusted Consolidated Net Tangible Assets and (iii) the Company
delivers to the Trustee an Officers' Certificate (which Officers' Certificate
shall be conclusive) certifying that such Asset Sale complies with clauses (i)
and (ii) of this Section 10.17(a). The amount (without duplication) of any
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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 (ii) 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.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale after the date of this Indenture, the Company or such Restricted Subsidiary
may either, no later than 365 days after such Asset Sale, (i) apply all or any
of the Net Cash Proceeds therefrom to (A) repay Indebtedness under the Credit
Facility or (B) repay or purchase other Indebtedness (other than Subordinated
Indebtedness or Pari Passu Indebtedness) of the Company or any Restricted
Subsidiary, provided, in the case of clause (B), that the related loan
commitment (if any) is thereby permanently reduced by the amount of such
Indebtedness so repaid or purchased, or (ii) invest all or any part of the Net
Cash Proceeds thereof in Properties 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."
(c) 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 Securities and holders of any then outstanding Pari
Passu Indebtedness required to be repurchased or repaid on a permanent basis in
connection with an Asset Sale, an aggregate principal amount of Securities and
any such Pari Passu Indebtedness equal to such Excess Proceeds as follows:
(1) Not later than the 30th day following the Trigger Date, the
Company shall (i) give to the Trustee in the manner provided in Section
15.4 hereof and each Holder of the Securities in the manner provided in
Section 15.5 hereof, a notice (a "Purchase Notice") offering to purchase (a
"Net Proceeds Offer") from all Holders of the Securities the maximum
principal amount (expressed as a multiple of $1,000) of Securities 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 Securities and the denominator of
which is the sum of the outstanding principal amount of the Securities 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 Securities tendered), and (ii) 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.
(2) The offer price for the Securities shall be payable in cash in an
amount equal to 100% of the aggregate principal amount of the Securities
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 (d) of this Section. To the
extent that the aggregate Offered Price of the Securities tendered pursuant
to a Net Proceeds Offer is less than the Payment
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Amount relating thereto or the aggregate amount of the Pari 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 10.10 hereof.
(3) If the aggregate Offered Price of Securities validly tendered and
not withdrawn by Holders thereof exceeds the Payment Amount, Securities to
be purchased will be selected on a pro rata basis by the Trustee based on
the aggregate principal amount of Securities so tendered. Upon completion
of a Net Proceeds Offer and a Pari Passu Offer, the amount of Excess
Proceeds shall be reset to zero.
(4) 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 (i) 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 Securities at the Offered Price,
subject to the limitations described in the forgoing paragraph (3), (ii)
any information regarding such Net Proceeds Offer required to be furnished
pursuant to Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder, (iii) that any Security, or portion thereof,
not tendered or accepted for payment will continue to accrue interest, (iv)
that, unless the Company defaults in depositing money with the Paying Agent
in accordance with the last paragraph of clause (d) of this Section 10.17,
or payment is otherwise prevented, any Security, or portion thereof,
accepted for payment pursuant to the Net Proceeds Offer shall cease to
accrue interest after the Net Proceeds Payment Date, and (v) the
instructions a Holder must follow in order to have his Securities
repurchased in accordance with paragraph (d) of this Section.
(d) Holders electing to have Securities purchased will be required to
surrender such Securities 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 Securities 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 Securities purchased. Holders of Physical Securities whose
Securities are purchased only in part will be issued new Securities equal in
principal amount to the unpurchased portion of the Securities surrendered, which
unpurchased portion will be equal to $1,000 or an integral multiple thereof.
On the Net Proceeds Payment Date, the Company shall (i) accept for
payment Securities 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 Securities as has been tendered, (ii) irrevocably deposit
with the Paying Agent, by 11:00 a.m., Eastern time, immediately available funds
sufficient to pay the purchase price of all Securities or portions thereof so
tendered in an aggregate principal amount equal to the Payment Amount or such
lesser amount and (iii) deliver or cause to be delivered to the Trustee the
Securities so accepted. The Paying Agent shall promptly send, in the manner
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provided in Section 15.5, to Holders of the Securities 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 Security equal in principal amount to any unpurchased portion of
the Security which any such Holder did not surrender for purchase. Any
Securities 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 10.17, the Trustee will act as the Paying Agent.
(e) The Company shall not permit any Restricted 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 Securities as described in this Section
10.17. 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 comply with the applicable securities laws and regulations and will not be
deemed to have breached its obligations under this Section 10.17 by virtue
thereof.
Section 10.18 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, (ii) 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 related transactions involving payments in
excess of $5,000,000 but less than $25,000,000 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 Disinterested Directors of the Company and (iv) with
respect to a transaction or series of related transactions involving payments of
$25,000,000 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 nationally recognized investment banking firm or
appraisal firm in the United States that such transaction or series of related
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 (s) the provision of services and payments under the Torch
Agreement, so long as the Torch Agreement (including any modifications,
renewals, replacements or substitutions thereof or amendments thereto entered
into on or after the date of this Indenture) has been approved by a majority of
the Disinterested Directors of the Company, (t) loans or advances to officers,
directors and employees of the
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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, (u)
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, (v) the Company's employee compensation and other benefit
arrangements, (w) indemnities of officers and directors of the Company or any
Subsidiary consistent with such Person's bylaws and applicable statutory
provisions or (x) Restricted Payments permitted by Section 10.10 hereof.
Section 10.19 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 (a) 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, (b) pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (c) make an Investment in the Company or any
other Restricted Subsidiary or (d) transfer any of its Properties to the Company
or any other Restricted Subsidiary, except in each instance for such
encumbrances or restrictions pursuant to (i) this Indenture, the Credit Facility
or any other agreement in effect on the date of this Indenture, (ii) 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, or the Property of the Person, so acquired, (iii) customary
restrictions in leases and licenses relating to the Property covered thereby and
entered into in the ordinary course of business or (iv) any agreement that
extends, renews, refinances or replaces the agreements containing the
restrictions in the foregoing clauses (i), (ii) and (iii), provided that the
terms and conditions of any such restrictions are not materially less favorable
to the Holders of the Securities than those under or pursuant to the agreement
so extended, renewed, refinanced or replaced, and except with respect to clause
(d) only, (i) restrictions in the form of Liens which are not prohibited under
Section 10.15 and which contain customary limitations on the transfer of
collateral and (ii) 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 10.20 Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 10.5 through 10.19 (excluding
Section 10.13) hereof if, before or after the time for such compliance, the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities, by Act of such Holders, waive such compliance in such instance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision 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 term, provision or condition shall
remain in full force and effect.
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Section 10.21 Qualification of Indenture.
--------------------------
The Company shall qualify this Indenture under the TIA in accordance with
the terms and conditions of the initial Registration Rights Agreement and shall
pay all costs and expenses (including attorneys' fees for the Company and the
Trustee) incurred in connection therewith. In connection with any such
qualification of this Indenture under the TIA, the Trustee shall be entitled to
receive from the Company any such Officers' Certificates, Opinions of Counsel or
other documentation as it may reasonably request.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Right of Redemption.
-------------------
The Securities 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 October 1, 2005,
upon not less than 30 or more than 60 days' notice to each Holder of Securities
to be redeemed, subject to the conditions and at the Redemption Prices
(expressed as percentages of principal amount) specified in the form of
Security, together with accrued and unpaid interest, if any, to the Redemption
Date.
Notwithstanding the foregoing, prior to October 1, 2003 the Company may,
at any time or from time to time, redeem up to 33 1/3% of the aggregate
principal amount of the Securities originally issued (excluding, for this
purpose, any Securities issued in exchange for Series A Securities) at a
Redemption Price of 109.375% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Redemption Date, with the net proceeds of one or
more Equity Offerings of the Company, provided that at least 66 2/3% of the
aggregate principal amount of the Securities originally issued at any time prior
to such redemption (excluding, for this purpose, any Series B Securities issued
in exchange for Series A Securities) remains Outstanding after the occurrence of
such redemption and provided, further, that such redemption shall occur not
later than 90 days after the date of the closing of any such Equity Offering.
Section 11.2 Applicability of Article.
------------------------
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
Section 11.3 Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities pursuant to Section
11.1 hereof shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 60 days (or, in the
case of a full redemption of all Outstanding Securities, at least 45 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 to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select the
Securities to be redeemed pursuant to Section 11.4 hereof. Any election to
redeem
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Securities shall be revocable until the Company gives a notice of redemption
pursuant to Section 11.5 hereof to the Holders of Securities to be redeemed.
Section 11.4 Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not less than 30 days nor more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities not previously called for redemption, pro rata or by any other method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Securities; provided,
however, that any such partial redemption shall be in integral multiples of
$1,000.
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.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a Global Security, whether such Global
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the Global
Security shall be in an authorized denomination.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
Section 11.5 Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided for in Section
15.5 hereof not less than 30 nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) in the case of a partial redemption of Physical Securities, the
identification of the particular Securities to be redeemed, and, if any Global
Security or Physical Security is to be redeemed in part, the portion of the
principal amount thereof to be redeemed;
(d) that on the Redemption Date the Redemption Price (together with
accrued interest, if any, to the Redemption Date payable as provided in Section
11.7 hereof) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that, unless the Company shall default in the
payment of the Redemption Price and any applicable accrued and unpaid interest,
interest thereon will cease to accrue on and after said date; and
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(e) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
If any Security to be redeemed is in global form, then the Company shall
modify such notice to the extent necessary to accord with the procedures of the
Depository applicable to repurchases.
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. Failure to give such
notice by mailing to any Holder of Securities or any defect therein shall not
affect the validity of any proceedings for the redemption of other Securities.
Section 11.6 Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m., Eastern time, on 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 10.3 hereof) immediately available funds in an amount
sufficient to pay the Redemption Price of, and any accrued and unpaid interest
on, all the Securities which are to be redeemed on such Redemption Date.
Section 11.7 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 (together with accrued and unpaid interest,
if any, to the Redemption Date), and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued and
unpaid interest, if any, to the Redemption Date; provided, however, 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 3.8
hereof.
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 borne by the Securities.
Section 11.8 Securities Redeemed in Part.
---------------------------
Any Physical Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 10.2 hereof (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 such Holder's 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 Physical Security or Securities, of like
tenor
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and 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 amount of the Security so surrendered.
Section 11.9 Purchase of Securities.
----------------------
The Company shall have the right at any time and from time to time to
purchase Securities in the open market or otherwise at any price.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
Section 12.1 Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
----------
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 12.2 or Section 12.3
hereof be applied to all Outstanding Securities upon compliance with the
conditions set forth below in this Article XII.
Section 12.2 Defeasance and Discharge.
------------------------
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.2, 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 on the date the conditions set forth
in Section 12.4 hereof are satisfied (hereinafter, "legal defeasance"). For this
purpose, such legal defeasance means that the Company and the Subsidiary
Guarantors, if any, shall be deemed (i) to have paid and discharged their
respective obligations under the Outstanding Securities; provided, however, that
the Securities shall continue to be deemed to be "Outstanding" for purposes of
Section 12.5 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 with respect to such Securities and this Indenture (and the Trustee,
at the expense and direction of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities to receive, solely from the trust fund described in
Section 12.4 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 when such payments are due (or at such time as the Securities would
be subject to redemption at the option of the Company in accordance with this
Indenture), (B) the respective obligations of the Company and the Subsidiary
Guarantors, if any, under Sections 3.3, 3.4, 3.5, 3.6, 3.7, 5.8, 6.6, 6.9, 6.10,
10.2, 10.3, 10.21, 13.1 (to the extent it relates to the foregoing Sections and
this Article XII), 13.4 and 13.5 hereof, (C) the rights, powers, trusts, duties
and immunities of the Trustee hereunder, and (D) the obligations of the Company
and the Subsidiary Guarantors, if any, under this Article XII. Subject to
compliance with this Article XII, the Company may exercise its option under this
Section 12.2 notwithstanding the prior exercise of its option under Section 12.3
hereof with respect to the Securities.
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Section 12.3 Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 12.1 hereof of the option
applicable to this Section 12.3, (i) the Company and each Subsidiary Guarantor,
if any, shall be released from their respective obligations under any covenant
contained in Article VIII, in Sections 10.5 through 10.19 and in Section 13.2
hereof, and any covenant added to this Indenture pursuant to Section 9.1(b), and
(ii) the occurrence of any event specified in Section 5.1(c) or 5.1(d) hereof
(with respect to any of Article VIII, Sections 10.5 through 10.19, Section 13.2
and any covenant added to this Indenture pursuant to Section 9.1(b)) shall be
deemed not to be or result in an Event of Default, in each case with respect to
the Outstanding Securities on and after the date the conditions set forth below
are satisfied (hereinafter, "covenant defeasance"), and the Securities 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, the Company
and each Subsidiary Guarantor, if any, may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Article or Section (to the extent so specified in the case of Sections 5.1(c)
and 5.1(d) hereof), whether directly or indirectly, by reason of any reference
elsewhere herein to any such Article or Section or by reason of any reference in
any such Article or Section to any other provision herein or in any other
document, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the Company's
exercise under Section 12.1 hereof of the option applicable to this Section
12.3, subject to the satisfaction of the conditions set forth in Section 12.4
hereof, Sections 5.1(e) and 5.1(g) hereof shall thereafter not constitute Events
of Default.
Section 12.4 Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
12.2 or Section 12.3 hereof to the Outstanding Securities:
(a) 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 6.7 hereof who shall agree to comply with
the provisions of this Article XII 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, (A)
cash in U.S. 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 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 payments with
respect to the Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 11.3 hereof, a notice of its election to
redeem all of the Outstanding Securities at a future date in accordance with
Article XI hereof, which notice shall be
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irrevocable. Such irrevocable redemption notice, if given, shall be given effect
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), as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) 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 5.1(h) and 5.1(i) are concerned, at any time during the period ending
on the 91st day after the date of such deposit.
(c) 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.
(d) 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.
(e) In the case of an election under Section 12.2 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a
change in the applicable federal income tax laws, in either case providing that
the Holders of the Outstanding Securities 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 (x) 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 (y) the Trustee shall be under no
obligation to investigate the basis or correctness of such ruling).
(f) In the case of an election under Section 12.3 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize income, gain or loss
for federal income tax purposes as a result of such covenant defeasance and will
be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not
occurred.
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(g) 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 12.2 hereof or the covenant defeasance under Section 12.3 (as the case
may be) have been complied with.
Section 12.5 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 10.3 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 12.5, the "Trustee") pursuant to Section 12.4 hereof in
respect of the Outstanding Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal (and 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 12.4 hereof or the principal and interest received
in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article XII 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 12.4
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, 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.
Section 12.6 Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 12.5 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 shall be revived and reinstated as
though no deposit had occurred pursuant to Section 12.2 or 12.3 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 12.5 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 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.
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ARTICLE XIII
SUBSIDIARY GUARANTEES
Section 13.1 Unconditional Guarantee.
-----------------------
Each Subsidiary Guarantor, if any, 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 Securities 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 Securities and that:
(a) the principal of (and premium, if any, on) and interest on the
Securities will be promptly paid in full when due (subject to any applicable
grace periods), whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Securities, 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
(b) in case of any extension of time of payment or renewal of any
Securities 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 (a) and (b) above, to the
limitations set forth in Section 13.4 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 Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities 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 waives, to the extent permitted by
law, diligence, presentment, demand of payment, filing of claims with a court in
the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, 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 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
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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, (x) the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article V 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 (y) in
the event of any acceleration of such obligations as provided in Article V
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 13.2 Subsidiary Guarantors May Consolidate, etc., on Certain
-------------------------------------------------------
Terms.
-----
(a) Except as set forth in Article VIII hereof, nothing contained in
this Indenture or in any of the Securities 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.
(b) Except as set forth in Article VIII hereof, nothing contained in
this Indenture or in any of the Securities 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
(i) 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, (ii) such transaction shall not violate any of the covenants of
Sections 10.1 through 10.19 hereof, and (iii) 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 XIII and in a notation to the Securities, 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 substantially in the form of
Exhibit E hereto, 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 13.3 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 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 substantially in the form of Exhibit E hereto 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.
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Section 13.3 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 13.2 hereof or pursuant to Article VIII
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 Guarantors have terminated.
Any Subsidiary Guarantor not released in accordance with this Section
13.3 shall remain liable for the full amount of principal of (and premium, if
any, on) and interest on the Securities as provided in this Article XIII.
Section 13.4 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
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obligations of such other Subsidiary Guarantor under its Subsidiary Guarantee or
pursuant to Section 13.5 hereof, result in the obligations of such Subsidiary
Guarantor under its Subsidiary Guarantee not constituting such a fraudulent
conveyance or fraudulent transfer. This Section 13.4 is for the benefit of the
creditors of each Subsidiary Guarantor, and, for purposes of the Federal
Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act any each other similar federal or state law, any Indebtedness of a
Subsidiary Guarantor incurred from time to time pursuant to the Credit Facility
shall be deemed to have been incurred prior to the incurrence by such Subsidiary
Guarantor of liability under its Subsidiary Guarantee.
Section 13.5 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 Securities or any other Subsidiary Guarantor's
obligations with respect to its Subsidiary Guarantee.
Section 13.6 Execution and Delivery of Notations of Subsidiary
-------------------------------------------------
Guarantees.
----------
To evidence its Subsidiary Guarantee set forth in Section 13.1 hereof,
each Subsidiary Guarantor hereby agrees to execute the notations of Subsidiary
Guarantees in substantially the form set forth in Section 2.4 hereof to be
endorsed on all Securities ordered to be authenticated and delivered by the
Trustee, unless at such time there are no Subsidiary Guarantors, and each
Subsidiary Guarantor agrees that any supplement to 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 13.1 hereof shall remain in full force and effect
notwithstanding any failure to endorse on each Security 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 Security on which
it is endorsed, and the delivery of such Security 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 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 Security 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 Security 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.
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Section 13.7 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 13.8 Subsidiary Guarantees Subordinated to Guarantor Senior
-------------------------------------------------------
Indebtedness.
------------
Each Subsidiary Guarantor covenants and agrees, and each Holder of a
Security, 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 indebtedness, obligations and liabilities of 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 XIII, 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 Securities 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 XIII 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 13.9 Subsidiary Guarantors Not to Make Payments with Respect to
----------------------------------------------------------
Subsidiary Guarantees in Certain Circumstances.
----------------------------------------------
(a) No payment or distribution of any Property of any Subsidiary
Guarantor of any kind or character (other than Permitted Guarantor Junior
Securities) may be made by such Subsidiary Guarantor in respect of its
Subsidiary Guarantee upon (i) 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") and
(ii) receipt by the Trustee of written notice thereof, unless and until such
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 (unless otherwise
prohibited pursuant to Section 13.10 hereof) such Subsidiary Guarantor shall
resume making any and all required payments in respect of its Subsidiary
Guarantee, including any missed payments.
(b) 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
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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 Non-payment
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 Securities);
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 or Section
13.10 hereof) 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.
(c) 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 Security prohibited by the foregoing provisions of
this Section 13.9, 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 Specified 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.
Section 13.10 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:
(a) the holders of such Subsidiary Guarantor's Guarantor Senior
Indebtedness shall be entitled to receive 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 Securities), on account of any payment in respect of
such Subsidiary Guarantor's Subsidiary Guarantee;
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(b) 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 Securities), 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 XIII, 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
(c) in the event that, notwithstanding the foregoing provisions of
this Section 13.10, 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 Securities), 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 trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of such Subsidiary Guarantor, 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.
Section 13.11 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 such Subsidiary Guarantee is so subordinated
and which is entitled to like 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
Securities 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 XIII 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 Securities,
be deemed to be a payment or distribution by such Subsidiary
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Guarantor to or on account of such Guarantor Senior Indebtedness, it being
understood that the subordination provisions of this Article XIII 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 13.12 Obligations of Subsidiary Guarantors Unconditional.
--------------------------------------------------
Nothing contained in this Article XIII or elsewhere in this Indenture or
in any Security 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 XIII, the
Trustee, subject to the provisions of Section 6.2 hereof, and the Holders of the
Securities 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, receiver, 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 Securities, 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
XIII.
Section 13.13 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 13.14 Application by Trustee of Money Deposited with it.
-------------------------------------------------
Except as provided in Article XIV, 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
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of the related Subsidiary Guarantee shall be subject to the provisions of
Sections 13.8, 13.9, 13.10 and 13.11 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 13.13 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 XIII, 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 XIII, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
The 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 XIII.
Section 13.15 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
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 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 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
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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 13.16 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 XIII 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 Securities
pursuant to the related Subsidiary Guarantee in the form required in said
proceedings and the causing of said claim to be approved.
Section 13.17 Right of Trustee to Hold Guarantor Senior Indebtedness.
------------------------------------------------------
The Trustee shall be entitled to all of the rights set forth in this
Article XIII 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.
Section 13.18 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 XIII shall not be construed as
preventing the occurrence of an Event of Default under this Indenture.
Section 13.19 Payment.
-------
For purposes of this Article XIII, a payment with respect to any
Subsidiary Guarantee or with respect to principal of or interest on the Security
or any Subsidiary Guarantee shall include, without limitation, payment of
principal of and interest on any Security, any depositing of funds under Article
IV hereof, any payment on account of any repurchase or redemption of any
Security 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 Security.
Section 13.20 Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent any Subsidiary Guarantor, at any time except
during the pendency of any Insolvency or Liquidation Proceeding referred to in
Section 13.10 hereof or under the conditions described in Section 13.9 hereof,
from making payments at any time on its Subsidiary Guarantee.
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ARTICLE XIV
SUBORDINATION OF SECURITIES
Section 14.1 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 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 this Indenture or thereafter created, incurred, assumed or guaranteed;
provided, however, that the Securities, the Indebtedness represented thereby and
the payment of the principal 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 XIV 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 14.2 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:
(a) 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) 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
(including pursuant to a Change of Control Offer or a Net Proceeds Offer); and
(b) 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), 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
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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
(c) 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) shall be received and held in trust for and 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, 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 on a consolidated basis to another Person or
group of Affiliated Persons pursuant to, and in compliance with, the terms and
conditions set forth in Article VIII 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 14.3 Suspension of Payment When Senior Indebtedness in Default.
---------------------------------------------------------
(a) Upon (1) the occurrence of a Payment Event of Default and (2)
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) 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 Specified Senior Indebtedness
shall have been paid in full or otherwise discharged, after which (unless
otherwise prohibited by Section 14.2 hereof) the Company shall resume making any
and all required payments in respect of the Securities, including any missed
payments.
(b) Upon (1) the occurrence of a Non-payment Event of Default and (2)
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) 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
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representative) and shall end on the earliest of (i) 179 days thereafter, (ii)
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 (iii) 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 (unless otherwise prohibited pursuant to the immediately preceding
paragraph or Section 14.2 hereof) 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.
(c) 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 14.3, 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 14.4 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 14.2
hereof or under the conditions described in Section 14.3 hereof, from making
payments at any time of principal of (and premium, if any, on) or interest on
the Securities.
Section 14.5 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 payments 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 deemed to be a payment or distribution by
the Company to or on account of the Senior Indebtedness.
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Section 14.6 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 (a) 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 (b) 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 (c) 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 14.7 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 14.8 No Waiver of Subordination Provision.
------------------------------------
(a) 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 by any such holder, or by any non-
compliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) 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: (1) 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 Senior
Indebtedness as defined in this Indenture); (2) sell, exchange, release or
otherwise deal with any Property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) settle or compromise any Senior Indebtedness or any liability
of any obligor thereon or release any Person liable in any manner for the
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collection of Senior Indebtedness; and (4) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 14.9 Notice to Trustee.
-----------------
(a) 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 representative), 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.
(b) 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, 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 14.10 Reliance on 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
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thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
Section 14.11 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 6.6 hereof.
Section 14.12 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 14.11 hereof shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
Section 14.13 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 V hereof or to pursue any rights or remedies
hereunder or under applicable law, except as provided in Article V hereof.
Section 14.14 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
XII hereof by the Trustee (or other qualifying trustee) and which were deposited
in accordance with the terms of Article XII hereof and not in violation of
Section 14.2 or 14.3 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 XIV, 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.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company or any Subsidiary
Guarantor to the Trustee to take any action under any provision of this
Indenture, the Company or such Subsidiary Guarantor, as the case may be, shall
furnish to the Trustee such certificates and
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opinions as may be required under the Trust Indenture Act or this Indenture.
Each such certificate and each such opinion shall be in the form of an Officers'
Certificate or an Opinion of Counsel, as applicable, and shall comply with the
requirements of this Indenture.
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 individual 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 individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 15.1 and
the statements required by this Section 15.1 shall comply in all respects with
TIA Sections 314(c) and (e).
Section 15.2 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 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 Opinion of Counsel may be based, insofar as it relates to factual matters,
upon an officers' certificate, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate with respect to such matters
is 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.
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Section 15.3 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 agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(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 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 ownership, principal amount and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of Securities any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date, provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the
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same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, including, without
limitation, any Series B Security exchanged for a Series A Security, 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.
Section 15.4 Notices, etc. to Trustee, Company and Subsidiary
------------------------------------------------
Guarantors.
----------
Any request, demand, authorization, direction, notice, consent, waiver or
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, the Company, any Subsidiary Guarantor
or any holder of Senior Indebtedness or Guarantor Senior Indebtedness shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing (in the English language) and delivered in person or
mailed by certified or registered mail (return receipt requested) to the
Trustee at its Corporate Trust Office; or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing (in the English language) and
delivered in person or mailed by certified or registered mail (return
receipt requested) to the Company or such Subsidiary Guarantor, as
applicable, addressed to it at the Company's principal office located at
1021 Main Street, Suite 2100, Houston, Texas 77002, or at any other address
otherwise furnished in writing to the Trustee by the Company.
Section 15.5 Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders by the
Company, the Trustee or any Paying Agent, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing (in the English
language) and mailed, first-class postage prepaid, to each Holder affected by
such event, at his address 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. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice. 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.
In case by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
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Section 15.6 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.
Section 15.7 Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company and the
Subsidiary Guarantors, if any, shall bind their respective successors and
assigns, whether so expressed or not. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 15.8 Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities or the
Subsidiary Guarantees, if any, 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, and a Holder shall have no claim
therefor against any party hereto.
Section 15.9 Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person (other than the parties hereto, any Paying Agent, any
Securities Registrar and their successors hereunder, the Holders and, to the
extent set forth in Section 13.4 hereof, creditors of any Subsidiary Guarantor,
the holders of Senior Indebtedness and the holders of Guarantor Senior
Indebtedness) any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 15.10 Governing Law; Trust Indenture Act Controls.
-------------------------------------------
(a) THIS INDENTURE, THE SUBSIDIARY GUARANTEES, IF ANY, AND THE
SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. THE COMPANY AND EACH SUBSIDIARY GUARANTOR, IF ANY,
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, THE CITY OF
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE, THE SECURITIES OR THE SUBSIDIARY GUARANTEES, IF ANY, AND THE COMPANY
AND EACH SUBSIDIARY GUARANTOR, IF ANY, IRREVOCABLY AGREE THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED BY ANY SUCH
COURT.
(b) Effective upon and subject to the qualification of this Indenture
pursuant to the provisions of the Trust Indenture Act, if and to the extent that
any provision of this Indenture limits, qualifies or conflicts with the duties
imposed by operation of Section 318(c) of the Trust Indenture Act, or conflicts
with any provision (an "incorporated provision") required by or deemed to be
included in this Indenture by operation of such Trust Indenture Act section,
such imposed duties or incorporated provision shall control.
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Section 15.11 Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, or Stated
Maturity or Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities or
any Subsidiary Guarantee) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date or at the Stated Maturity or Maturity; provided, however, that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date, Stated Maturity or Maturity, as the case may be.
Section 15.12 No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder, incorporator or Affiliate, as
such, past, present or future, of the Company or any Subsidiary Guarantor shall
not have any personal liability under the Securities or this Indenture by reason
of his or its status as a director, officer, employee, stockholder, incorporator
or Affiliate or any liability for any obligations of the Company or any
Subsidiary Guarantor under the Securities or this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder, by accepting any of the Securities, waives and releases all such
liability to the extent permitted by applicable law.
Section 15.13 Duplicate Originals.
-------------------
The parties may sign any number of copies or counterparts of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 15.14 No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ISSUER:
NUEVO ENERGY COMPANY
By:____________________________________
Name: Robert M. King
Title: Senior Vice President and
Chief Financial Officer
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TRUSTEE:
STATE STREET BANK AND TRUST COMPANY
By:____________________________________
Name:
Title:
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<PAGE>
EXHIBIT A
---------
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend in addition to the Private Placement Legend, if required by Section 3.12
hereof, in substantially the following form:
THIS SECURITY IS A GLOBAL 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 OR A SUCCESSOR DEPOSITORY. THIS SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN
THE DEPOSITORY OF ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN 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 THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
<PAGE>
EXHIBIT B
---------
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 9 3/8% Senior Subordinated Notes due 2010, Series A, and
9 3/8% Senior Subordinated Notes due 2010, Series B
(the "Securities"), of Nuevo Energy Company
-------------------------------------------
This Certificate relates to $_________ principal amount of Securities held
in the form of *[_] a beneficial interest in a Global Security or *[_] Physical
Securities by _________________ (the "Transferor").
The Transferor:*
[_] has requested by written order that the Security Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depository a Physical Security or Physical Securities in definitive, registered
form of authorized denominations and in an aggregate principal amount equal to
its beneficial interest in such Global Security (or the portion thereof
indicated above); or
[_] has requested that the Security Registrar by written order exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 3.5 of such Indenture, and that the
transfer of these Securities does not require registration under the Securities
Act of 1933, as amended (the "Act") because *:
[_] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of subparagraph (a)(1) or (c)(1) of Section
3.5 of the Indenture).
[_] Such Security is being transferred to a person whom the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A under the Act), in reliance on Rule 144A.
[_] Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act).
[_] Such Security is being transferred in reliance on Regulation S under
the Act.
[_] Such Security is being transferred in reliance on Rule 144 under the
Act.
B-1
<PAGE>
[_] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
___________________________________
[INSERT NAME OF TRANSFEROR]
By:________________________________
[Authorized Signatory]
Date:_________________________
*Check applicable box.
B-2
<PAGE>
EXHIBIT C
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
-----------------------------------------------
_______________, _____
State Street Bank and
Trust Company, Trustee
2 Avenue de Lafayette
Boston, MA 02111-1724
Re: Nuevo Energy Company Indenture (the "Indenture") relating to 9 3/8%
Senior Subordinated Notes due 2010, Series A, or 9 3/8% Senior
Subordinated Notes due 2010, Series B
Ladies and Gentlemen:
In connection with our proposed purchase of 9 3/8% Senior Subordinated
Notes due 2010, Series A, or 9 3/8% Series Notes due 2010, Series B (the
"Securities"), of Nuevo Energy Company (the "Company"), we confirm that:
1. We have received such information as we deem necessary in order to make
our investment decision.
2. We understand that any subsequent transfer of the Securities is subject
to certain restrictions and conditions set forth in the Indenture and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities, we will do so only (A) to the
Company or any subsidiary thereof, (B) inside the United States in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) inside the United States to an institutional "accredited
investor" (as defined below) that, prior to such transfer, furnishes (or has
furnished on its behalf by a U.S. broker-dealer) to the Trustee a signed letter
substantially in the form hereof, (D) outside the United States in accordance
with Regulation S under the Securities Act, (E) pursuant to the exemption from
registration provided by Rule 144 under the Securities Act (if available), or
(F) pursuant to an effective registration statement under the Securities Act,
and we further agree to provide to any person purchasing Securities from us a
notice advising such purchaser that resales of the Securities are restricted as
stated herein.
4. We understand that, on any proposed resale of Securities, we will be
required to furnish to you and the Company, such certification, legal opinions
and other
C-1
<PAGE>
information as you and the Company may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. We further understand
that the Securities purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be, for an indefinite period.
6. We are acquiring the Securities purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion, for investment
purposes and not with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act.
You and the Company and yours and their respective counsel are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:__________________________
[Authorized Signatory]
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EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection
with Regulation S Transfers
---------------------------
_______________, _____
State Street Bank and
Trust Company, Trustee
2 Avenue de Lafayette
Boston, MA 02111-1724
Re: Nuevo Energy Company ("the Company") 9 3/8% Senior Subordinated Notes
due 2010, Series A, and 9 3/8% Senior Subordinated Notes due 2010,
Series B (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $______________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knew that the transaction had been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
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<PAGE>
You and the Company and yours and their respective counsel are entitled to
rely upon this letter and are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby. Defined terms used
herein without definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:_______________________________
[Authorized Signatory]
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<PAGE>
Exhibit E
================================================================================
NUEVO ENERGY COMPANY
and
the Guarantors named herein
________________________________________
SERIES A AND SERIES B
9 3/8% SENIOR SUBORDINATED NOTES DUE 2010
________________________________________
___________________
FORM OF SUPPLEMENTAL INDENTURE
AND AMENDMENT -- SUBSIDIARY GUARANTEE
DATED AS OF ________ ___, ____
___________________
STATE STREET BANK AND TRUST COMPANY
Trustee
___________________
================================================================================
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<PAGE>
This SUPPLEMENTAL INDENTURE, dated as of __________ ___, ____, is among
Nuevo Energy Company, a Delaware corporation (the "Company"), each of the
parties identified under the caption "Subsidiary Guarantors" on the signature
page hereto (the "Subsidiary Guarantors") and State Street Bank and Trust
Company, as Trustee.
RECITALS
WHEREAS, the Company and the Trustee entered into an Indenture, dated as of
September 26, 2000 (the "Indenture"), pursuant to which the Company has
originally issued $______________ in principal amount of 9 3/8% Senior
Subordinated Notes due 2010 (the "Securities"); and
WHEREAS, Section 9.1(g) of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture in order to execute and deliver a
guarantee (a "Subsidiary Guarantee") to comply with Section 10.13 or 13.2
thereof without the consent of the Holders of the Securities; and
WHEREAS, all acts and things prescribed by the Indenture, by law and by the
Certificate of Incorporation and the Bylaws (or comparable constituent
documents) of the Company, of the Subsidiary Guarantors and of the Trustee
necessary to make this Supplemental Indenture a valid instrument legally binding
on the Company, the Subsidiary Guarantors and the Trustee, in accordance with
its terms, have been duly done and performed;
NOW, THEREFORE, to comply with the provisions of the Indenture and in
consideration of the above premises, the Company, the Subsidiary Guarantors and
the Trustee covenant and agree for the equal and proportionate benefit of the
respective Holders of the Securities as follows:
ARTICLE 1
Section 1.01. This Supplemental Indenture is supplemental to the Indenture
and does and shall be deemed to form a part of, and shall be construed in
connection with and as part of, the Indenture for any and all purposes.
Section 1.02. This Supplemental Indenture shall become effective
immediately upon its execution and delivery by each of the Company, the
Subsidiary Guarantors and the Trustee.
ARTICLE 2
From this date, in accordance with Section 10.13 or 13.2, as applicable,
and by executing this Supplemental Indenture and the accompanying notation of
Subsidiary Guarantee, the Subsidiary Guarantors whose signatures appear below
are subject to the provisions of the Indenture to the extent provided for in
Article XIII thereunder.
ARTICLE 3
Section 3.01. Except as specifically modified herein, the Indenture and
the Securities are in all respects ratified and confirmed (mutatis mutandis) and
shall remain in full force and effect in accordance with their terms with all
capitalized terms used herein
E-2
<PAGE>
without definition having the same respective meanings ascribed to them as in
the Indenture .
Section 3.02. Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect hereto.
Section 3.03. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE AND ENFORCE THIS SUPPLEMENTAL INDENTURE.
Section 3.04. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
[NEXT PAGE IS SIGNATURE PAGE]
E-3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, all as of the date first written above.
NUEVO ENERGY COMPANY
By___________________________________
Name:
Title:
SUBSIDIARY GUARANTORS
[___________________________]
By___________________________________
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By___________________________________
Name:
Title:
E-4
