0000950129-01-503220.txt : 20011009
0000950129-01-503220.hdr.sgml : 20011009
ACCESSION NUMBER: 0000950129-01-503220
CONFORMED SUBMISSION TYPE: 8-K
PUBLIC DOCUMENT COUNT: 5
CONFORMED PERIOD OF REPORT: 20010928
ITEM INFORMATION: Other events
ITEM INFORMATION: Financial statements and exhibits
FILED AS OF DATE: 20010928
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: OCEAN ENERGY INC /TX/
CENTRAL INDEX KEY: 0000320321
STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311]
IRS NUMBER: 741764876
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 8-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-08094
FILM NUMBER: 1747007
BUSINESS ADDRESS:
STREET 1: 1001 FANNIN STE 1600
CITY: HOUSTON
STATE: TX
ZIP: 77002-6714
BUSINESS PHONE: 7132656000
MAIL ADDRESS:
STREET 1: 1001 FANNIN, SUITE 1600
CITY: HOUSTON
STATE: TX
ZIP: 77002-6714
FORMER COMPANY:
FORMER CONFORMED NAME: SEAGULL ENERGY CORP
DATE OF NAME CHANGE: 19920703
FORMER COMPANY:
FORMER CONFORMED NAME: SEAGULL PIPELINE CORP
DATE OF NAME CHANGE: 19830815
8-K
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h90988e8-k.txt
OCEAN ENERGY, INC. - DATED 9/28/01
1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): September 28, 2001
Ocean Energy, Inc.
(Exact name of registrant as specified in its charter)
Delaware 01-08094 74-1764876
(State of Incorporation) (Commission File Number) (I.R.S. Employer
Identification Number)
1001 Fannin, Suite 1600
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (713) 265-6000
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ITEM 5. OTHER EVENTS
On September 25, 2001, Ocean Energy, Inc., a Delaware corporation (the
"Company"), entered into an Underwriting Agreement, filed herewith as Exhibit
1.1 and incorporated herein by reference, with the underwriters named therein
with respect to the issue and sale by the Company of $350,000,000 aggregate
principal amount of 7 1/4% Senior Notes due October 1, 2011 (the "Senior Notes")
in an underwritten public offering. The Senior Notes are expected to be issued
on September 28, 2001 pursuant to a Senior Indenture, which is filed herewith as
Exhibit 4.1 and incorporated herein by reference, to be dated on even date
therewith between the Company, Ocean Energy, Inc. (a Louisiana corporation), as
guarantor, and The Bank of New York, as trustee, in connection with the closing
respecting the Senior Notes. The Senior Notes, the terms and form of which are
filed herewith as part of Exhibit 4.2 and incorporated herein by reference, were
registered under the Securities Act of 1933, as amended.
The net proceeds from the sale of the Senior Notes are estimated to be
approximately $345.7 million, after deducting underwriting discounts and
commissions and expenses associated with the offering thereof. The Company
intends to use these proceeds to retire approximately $99.7 million aggregate
principal amount of its 8 5/8% Senior Subordinated Notes due 2005 and $1.8
million aggregate principal amount of its 9 3/4% Senior Subordinated Notes due
2006 and to repay approximately $244.2 million of indebtedness under the
Company's revolving credit facility.
The Company files herewith those exhibits listed in Item 7(c) below
relating to its Registration Statement on Form S-3 (File No. 333-67136) as filed
with the Securities and Exchange Commission on August 9, 2001, and as amended on
August 24, 2001.
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ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c)
Exhibit No. Description of Exhibit
1.1 Underwriting Agreement dated as of September 25, 2001 by and
among the Company and the underwriters named therein.
4.1 Senior Indenture dated as of September 28, 2001 between the
Company, Ocean Energy, Inc. (a Louisiana corporation) and The
Bank of New York, as trustee.
4.2 Officer's Certificate establishing the terms of the 7 1/4%
Senior Notes due October 1, 2011, including the form of global
note relating thereto.
23.1 Consent of Vinson & Elkins L.L.P. (included in Exhibit 99.1
hereto).
99.1 Opinion of Vinson & Elkins L.L.P. regarding the validity of
securities.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Dated: September 27, 2001
Ocean Energy, Inc.
By: /s/ Robert K. Reeves
-----------------------------------------
Robert K. Reeves
Executive Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
1.1 Underwriting Agreement dated as of September 25, 2001 by and
among the Company and the underwriters named therein.
4.1 Senior Indenture dated as of September 28, 2001 between the
Company, Ocean Energy, Inc. (a Louisiana corporation) and The
Bank of New York, as trustee.
4.2 Officer's Certificate establishing the terms of the 7 1/4%
Senior Notes due October 1, 2011, including the form of global
note relating thereto.
23.1 Consent of Vinson & Elkins L.L.P. (included in Exhibit 99.1
hereto).
99.1 Opinion of Vinson & Elkins L.L.P. regarding the validity of
securities.
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EX-1.1
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h90988ex1-1.txt
UNDERWRITING AGREEMENT
1
EXHIBIT 1.1
$350,000,000
OCEAN ENERGY, INC.
7 1/4 % SENIOR NOTES DUE 2011
UNDERWRITING AGREEMENT
September 25, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC,
C/O CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Ocean Energy, Inc., a Delaware corporation
("COMPANY"), proposes to issue and sell $350,000,000 principal amount ("OFFERED
SECURITIES") of its 7 1/4% Senior Notes Due 2011 ("SECURITIES"), which will be
guaranteed ("GUARANTEE") by Ocean Energy, Inc., a Louisiana corporation
("GUARANTOR"), all to be issued under an indenture, to be dated as of the
Closing Date ("INDENTURE"), among the Company, the Guarantor and The Bank of New
York, as Trustee. The Company hereby agrees with the several Underwriters named
in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) The registration statements (No. 333-67136, 333-79765,
333-34841 and 33-64051), including a combined prospectus pursuant to
Rule 429 under the Securities Act of 1933 (the "ACT"), relating to the
Offered Securities have been filed with the Securities and Exchange
Commission ("COMMISSION") and have become effective. Such registration
statements, as amended at the time of this Agreement, are hereinafter
referred to as the "REGISTRATION STATEMENT", and the combined
prospectus included in such Registration Statement, as supplemented as
of the date hereof to reflect the terms of the Offered Securities and
the terms of offering thereof, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Act, including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating
to the Offered Securities, such registration statement conformed in all
material respects to the requirements of the Act, the Trust Indenture
Act of 1939 ("TRUST INDENTURE ACT") and the rules and regulations of
the Commission ("RULES AND REGULATIONS") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and on the date of this Agreement, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the Rules
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and Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, except that the foregoing does not apply to
statements in or omissions from any of such documents based upon
written information furnished to the Company by any Underwriter through
Credit Suisse First Boston Corporation ("CSFBC"), if any, specifically
for use therein.
(c) The Company and the Guarantor have been duly incorporated and
each is an existing corporation in good standing under the laws of the
State of Delaware and the State of Louisiana, respectively, with power
and authority (corporate and other) to own their respective properties
and conduct their respective businesses as described in the Prospectus;
and each of the Company and the Guarantor are duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify, individually or in the aggregate, would not have
a material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(d) Each subsidiary of the Company has been duly incorporated,
organized or formed and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, organization
or formation with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
each subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification except as would not have, individually or
in the aggregate, a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable;
and the capital stock of each subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens, encumbrances and
defects, except for such liens, encumbrances and defects that would
not, individually or in the aggregate, have a Material Adverse Effect.
(e) The Indenture has been duly authorized and has been duly
qualified under the Trust Indenture Act; the Offered Securities have
been duly authorized; and when the Offered Securities are delivered and
paid for pursuant to this Agreement on the Closing Date (as defined
below), the Indenture will have been duly authorized, executed and
delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform in all material
respects to the description thereof contained in the Prospectus and the
Indenture and such Offered Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles. The Guarantee has been duly authorized, executed and
delivered and constitutes the valid and legally binding obligation of
the Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(f) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
the Trust Indenture Act and such as may be required under state
securities laws.
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(g) The execution, delivery and performance of the Indenture and
this Agreement, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of its or their respective properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is subject, or the
charter or by-laws (or comparable organizational documents) of the
Company or any such subsidiary, in each case, except for such breaches,
violations or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect, and the Company has full
power and authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement.
(h) The execution, delivery and performance of the Indenture and
this Agreement, and the execution and delivery of the Guarantee and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Guarantor or any subsidiary of the
Guarantor or any of its or their respective properties, or any
agreement or instrument to which the Guarantor or any such subsidiary
is a party or by which the Guarantor or any such subsidiary is bound or
to which any of the properties of the Guarantor or any such subsidiary
is subject, or the charter or by-laws (or comparable organizational
documents) of the Guarantor or any such subsidiary, in each case,
except for such breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect, and
the Guarantor has full power and authority to authorize, execute and
deliver the Guarantee.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(j) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(k) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(l) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect.
(m) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to
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hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"),
owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(n) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that could
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect, or materially and adversely affect the ability
of the Company to perform its obligations under the Indenture or this
Agreement or the Guarantor to perform its obligations under the
Guarantee, or which are otherwise material in the context of the sale
of the Offered Securities; and to the Company's knowledge, no such
actions, suits or proceedings are threatened or contemplated.
(o) The financial statements included in the Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown in
conformity with generally accepted accounting principles in the United
States applied on a consistent basis.
(p) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(q) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of 98.809% of the principal amount thereof
plus accrued interest, if any, from September 28, 2001 to the Closing Date (as
hereinafter defined), the respective principal amounts of the Offered Securities
set forth opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriters in Federal (same day) funds by wire transfer
to an account at a bank designated by the Company and reasonably acceptable to
CSFBC drawn to the order of the Company at the office of Akin, Gump, Strauss,
Hauer & Feld, L.L.P. at 8:00 A.M., (New York time), on September 28, 2001, or at
such other time not later than seven full business days thereafter as CSFBC and
the Company determine, such time being herein referred to as the "CLOSING DATE",
against delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities.
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4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by CSFBC, subparagraph (5)) not later than the
second business day following the execution and delivery of this
Agreement.
(b) For so long as a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by
any Underwriter or dealer, the Company will advise CSFBC promptly of
any proposal to amend or supplement the Registration Statement or the
Prospectus and will afford CSFBC a reasonable opportunity to comment on
any such proposed amendment or supplement; and the Company will also
advise CSFBC promptly of the filing of any such amendment or supplement
and of the institution by the Commission of any stop order proceedings
in respect of the Registration Statement or of any part thereof and
will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act, the Company promptly will notify CSFBC of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither
CSFBC's consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
registration statement relating to the Offered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report
on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the
Act.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriters reasonably requests. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) So long as the Offered Securities remain outstanding, the
Company will furnish to CSFBC and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish
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or make available to CSFBC as soon as available, a copy of each report
and any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 ("EXCHANGE ACT")
or mailed to stockholders.
(h) The Company and the Guarantor will pay all expenses incident
to the performance of their obligations under this Agreement, for any
filing fees and other expenses (including fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as CSFBC designates and
the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Offered Securities,
for any travel expenses of the Company's officers and employees and any
other expenses of the Company or the Guarantor in connection with
attending or hosting meetings with prospective purchasers of the
Offered Securities and for expenses incurred in distributing
preliminary prospectuses, any preliminary prospectus supplements or any
Prospectus (including any amendments and supplements thereto), to the
Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC for a period beginning at
the date of this Agreement and ending at the later of the Closing Date
and the termination of the underwriting syndicate.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities on
the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the Underwriters
shall have received a letter, dated the date of delivery thereof, of
KPMG LLP confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
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(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of such letter, there
was any change in the capital stock or any increase
in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus, except as expressly disclosed in such
letter; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net sales, net operating income per
share amounts of consolidated income before
extraordinary items or net income or in the ratio of
earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
All financial statements and schedules included in material
incorporated by reference into the Prospectus shall be deemed included
in the Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBC,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (ii) any
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downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including CSFBC,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities.
(d) The Underwriters shall have received an opinion, dated the
Closing Date, of Vinson & Elkins, L.L.P., counsel for the Company, to
the effect that:
(i) Each of the Company and the Guarantor is a
corporation in good standing under the laws of its state of
incorporation with corporate power and authority to own its
respective properties and conduct its respective business as
described in the Prospectus;
(ii) The Indenture has been duly authorized, executed
and delivered by the Company and the Guarantor and has been
duly qualified under the Trust Indenture Act; the Offered
Securities delivered on the Closing Date have been duly
authorized, executed and delivered by the Company and conform
in all material respects to the description thereof contained
in the Prospectus; and the Indenture and the Offered
Securities delivered on the Closing Date, when they have been
properly authenticated by the Trustee in accordance with the
Indenture, constitute valid and legally binding obligations of
the Company, enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
to general equity principles;
(iii) The Guarantee has been duly authorized,
executed and delivered by the Guarantor and conforms in all
material respects to the description thereof contained in the
Prospectus; and the Guarantee constitutes the valid and
legally binding obligation of the Guarantor enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company or in
connection with the execution and delivery
8
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of the Guarantee by the Guarantor, except such as have been
obtained and made under the Act and the Trust Indenture Act
and such as may be required under state securities laws;
(vi) The execution, delivery and performance of the
Indenture and this Agreement and the issuance and sale of the
Offered Securities and the execution and delivery of the
Guarantee will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
(i) any statute, any rule, regulation or order of any
governmental agency or body or any court having jurisdiction
over the Company or the Guarantor or any of their respective
properties (other than federal and state securities laws, as
to which such counsel need express no opinion except for those
opinions contained in paragraphs 6(d)(v) and 6(d)(vii)), or
(ii) any agreement or instrument to which the Company or the
Guarantor is a party or by which the Company or the Guarantor
is bound or to which any of the properties of the Company or
the Guarantor is subject and that was included as an exhibit
to any of the Company's Annual Report on Form 10-K for the
year ended December 31, 2000, the Company's Quarterly Reports
on Form 10-Q for the three months ended March 31, 2001 and
June 30, 2001 or the Company's Current Reports on Form 8-K
filed by the Company with the Commission since the beginning
of the Company's current fiscal year (except for agreements
relating to employee benefit plans and employment agreements,
as to which such counsel need express no opinion), or (iii)
the charter or by-laws of the Company or the Guarantor;
(vii) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the registration statement relating to the Registered
Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of this
Agreement, and any amendment or supplement thereto, as of its
date, appear on their face to comply as to form in all
material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; and
(viii) This Agreement has been duly authorized,
executed and delivered by the Company and the Guarantor.
Such opinion shall also contain a statement to the effect that
such counsel has no reason to believe that (i) the Registration
Statement, as of the date of its effectiveness (other than information
relating to oil and gas reserves and production and the financial
statements and notes thereto and the other financial data contained
therein or omitted therefrom, as to which such counsel need not
comment) contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or (ii) the
Prospectus (other than information relating to oil and gas reserves and
production and the financial statements and notes thereto and the other
financial data contained therein or omitted therefrom, as to which such
counsel need not comment) on such Closing Date and at the time such
Prospectus was issued contains or contained any untrue statement of a
material fact or omits or omitted to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(e) The Underwriters shall have received an opinion, dated the
Closing Date, of Robert K. Reeves, General Counsel of the Company, or
his successor, to the effect that:
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(i) the descriptions in the Registration Statement
and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents under the captions
"Business-U.S. Regulation," "Business-Environmental Matters"
and "Legal Proceedings" are accurate and fairly present the
information required to be shown; and such counsel does not
know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus;
(f) The Representative shall have received from Akin, Gump,
Strauss, Hauer & Feld, L.L.P., counsel for the Underwriters, such
opinion or opinions, dated the Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on the Closing Date, the Registration Statement, the
Prospectus and other related matters as the Representative may require,
and the Company shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such
matters.
(g) The Underwriters shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(h) The Underwriters shall have received a letter, dated the
Closing Date, of KPMG LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
The Company will furnish CSFBC with such conformed copies of such opinions,
certificates, letters and documents as CSFBC reasonably requests. CSFBC may in
its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company and the Guarantor
will, jointly and severally, indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or preliminary prospectus
supplement or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Underwriter for
any legal or other expenses reasonably
10
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incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and the Guarantor will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company or the Guarantor by
any Underwriter through CSFBC specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, the Guarantor, their respective directors and officers and
each person, if any who controls the Company or the Guarantor within the meaning
of Section 15 of the Act, against any losses, claims, damages or liabilities to
which the Company or the Guarantor may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through CSFBC specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the prospectus supplement furnished on behalf of
each Underwriter: (i) the concession and reallowance figures under the caption
"Underwriting," (ii) the paragraph discussing the establishment of a trading
market in the Offered Securities under the caption "Underwriting" in the
Prospectus, (iii) the paragraph discussing the application of the Conduct Rules
of the National Association of Securities Dealers, Inc. to the Offering under
the caption "Underwriting" in the Prospectus, (iv) the information furnished on
behalf of Banc of America Securities LLC relating to its affiliate's role as
syndicate agent under the Company's revolving credit agreement under the caption
"Underwriting" in the Prospectus and (v) the paragraph discussing stabilizing,
over-allotment and syndicate covering transactions under the caption
"Underwriting" in the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it
11
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may wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantor on the one hand and the Underwriters on the other from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Guarantor
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantor under this Section
shall be in addition to any liability which the Company and the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each director of the Company or
the Guarantor, to each officer of the Company or Guarantor who has signed a
Registration Statement and to each person, if any, who controls the Company or
the Guarantor within the meaning of the Act.
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8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on the Closing
Date and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase on the Closing Date, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on the Closing Date. If any Underwriter or Underwriters so
default and the aggregate principal amount of Offered Securities with respect to
which such default or defaults occur exceeds 10% of the total principal amount
of Offered Securities that the Underwriters are obligated to purchase on the
Closing Date and arrangements satisfactory to CSFBC and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter or the Company, except as provided in
Section 9. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section. Nothing herein will relieve a
defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Guarantor or their officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company, the Guarantor or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (i),
(iii), (iv) or (v) of Section 6(c), the Company and the Guarantor will reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to CSFBC at Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 1001 Fannin Street, Suite 1600,
Houston, Texas 77002, Attention: Chief Financial Officer; provided, however,
that any notice to an Underwriter pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. CSFBC will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by CSFBC will be binding upon all the Underwriters.
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13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company and the Guarantor hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the CSFBC's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Underwriters in accordance with its terms.
Very truly yours,
OCEAN ENERGY, INC.
By /s/ William L. Transier
-------------------------
William L. Transier
Executive Vice President and
Chief Financial Officer
OCEAN ENERGY, INC. (A LOUISIANA CORPORATION)
By /s/ William L. Transier
-------------------------
William L. Transier
Executive Vice President and
Chief Financial Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Osmar Abib
----------------
Osmar Abib
Managing Director
Acting on behalf of itself and as the
representative of the several Underwriters.
Underwriting Agreement Signature Page
16
SCHEDULE A
UNDERWRITER PRINCIPAL
----------- AMOUNT OF
OFFERED SECURITIES
------------------
Credit Suisse First Boston Corporation...................................... $210,000,000
J.P. Morgan Securities Inc.................................................. $105,000,000
Banc of America Securities LLC.............................................. $ 35,000,000
------------
Total............................................ $350,000,000
============
Exhibit A
EX-4.1
4
h90988ex4-1.txt
SENIOR INDENTURE DATED 9/28/01
1
EXHIBIT 4.1
================================================================================
OCEAN ENERGY, INC.,
A DELAWARE CORPORATION, AS ISSUER,
OCEAN ENERGY, INC.,
A LOUISIANA CORPORATION,
AS SUBSIDIARY GUARANTOR
(TO THE EXTENT APPLICABLE)
AND
THE BANK OF NEW YORK, AS TRUSTEE
----------
Senior Indenture
Dated as of September 28, 2001
================================================================================
2
CROSS REFERENCE SHEET
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as
of September 28, 2001 among OCEAN ENERGY, INC., a Delaware corporation, OCEAN
ENERGY, INC., a Louisiana corporation and The Bank of New York:
Section of the Act Section of the Indenture
------------------ ------------------------
310(a)(1), (2) and (5).......................6.9
310(a)(3) and (4)............................Inapplicable
310(b).......................................6.8 and 6.10(a), (b) and (d)
310(c).......................................Inapplicable
311(a).......................................6.13(a) and (c)
311(b).......................................6.13(b) and (c)
311(c).......................................Inapplicable
312(a).......................................4.1 and 4.2(a)
312(b).......................................4.2(a) and (b)(i) and (ii)
312(c).......................................4.2(c)
313(a).......................................4.4(a)(i), (ii), (iii), (iv), (v),
(vi) and (vii)
313(a)(5)....................................Inapplicable
313(b)(1)....................................Inapplicable
313(b)(2)....................................4.4(b)
313(c).......................................4.4(c)
313(d).......................................4.4(d)
314(a).......................................4.3
314(b........................................Inapplicable
314(c)(1) and (2)............................11.5
314(c)(3)....................................Inapplicable
314(d).......................................Inapplicable
314(e).......................................11.5
314(f).......................................Inapplicable
315(a), (c) and (d)..........................6.1
315(b).......................................5.8
315(e).......................................5.9
316(a)(1)....................................5.7
316(a) (2)...................................Not required
316(a) (last sentence........................7.4
316(b).......................................5.4
317(a).......................................5.2
317(b).......................................3.5(a)
318(a).......................................11.7
*This Cross Reference Sheet is not part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 1.1 Definitions..............................................................................1
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally..........................................................................8
Section 2.2 Form of Trustee's Certificate of Authentication..........................................8
Section 2.3 Amount Unlimited, Issuable in Series.....................................................9
Section 2.4 Authentication and Delivery of Securities...............................................11
Section 2.5 Execution of Securities.................................................................13
Section 2.6 Certificate of Authentication...........................................................14
Section 2.7 Denomination and Date of Securities; Payments of Interest...............................14
Section 2.8 Registration Transfer and Exchange......................................................15
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities...............................17
Section 2.10 Cancellation of Securities; Disposition Thereof.........................................18
Section 2.11 Temporary Securities....................................................................18
Section 2.12 CUSIP Numbers...........................................................................19
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest.......................................................19
Section 3.2 Offices for Notices and Payments, etc...................................................19
Section 3.3 No Interest Extension...................................................................19
Section 3.4 Appointments to Fill Vacancies in Trustee's Office......................................20
Section 3.5 Provision as to Paying Agent............................................................20
Section 3.6 Restriction on Creation of Secured Debt.................................................21
Section 3.7 Restriction on Sale and Leaseback Transactions..........................................22
Section 3.8 Additional Subsidiary Guarantors........................................................23
This Section 3.8 shall apply to any series of Securities unless otherwise provided with respect to such
series pursuant to Section 2.3. With respect to any series of Securities to
which this Section 3.8 applies, the Issuer shall not at any time permit any
Restricted Subsidiary to guarantee the payment of any indebtedness of the Issuer
unless:.................................................................................23
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ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders.........................................................................24
Section 4.2 Preservation and Disclosure of Securityholders Lists....................................24
Section 4.3 Reports by the Issuer...................................................................25
Section 4.4 Reports by the Trustee..................................................................26
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
Section 5.1 Events of Default.......................................................................28
Section 5.2 Payment of Securities on Default; Suit Therefor.........................................30
Section 5.3 Application of Moneys Collected by Trustee..............................................32
Section 5.4 Proceedings by Securityholders..........................................................32
Section 5.5 Proceedings by Trustee..................................................................33
Section 5.6 Remedies Cumulative and Continuing......................................................33
Section 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders.............34
Section 5.8 Notice of Defaults......................................................................34
Section 5.9 Undertaking to Pay Costs................................................................34
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default............35
Section 6.2 Certain Rights of the Trustee...........................................................36
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof.....................................................................37
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc................................37
Section 6.5 Moneys Held by Trustee..................................................................37
Section 6.6 Compensation and Indemnification of Trustee and Its Prior Claim.........................38
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc..................................38
Section 6.8 Qualification of Trustee; Conflicting Interests.........................................38
Section 6.9 Persons Eligible for Appointment as Trustee.............................................44
Section 6.10 Resignation and Removal; Appointment of Successor Trustee...............................45
Section 6.11 Acceptance of Appointment by Successor Trustee..........................................46
Section 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee..................47
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Section 6.13 Preferential Collection of Claims Against the Issuer....................................47
Section 6.14 Appointment of Authenticating Agent.....................................................51
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders.............................................52
Section 7.2 Proof of Execution of Instruments and of Holding of Securities..........................52
Section 7.3 Holders to be Treated as Owners.........................................................52
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding.......................................53
Section 7.5 Right of Revocation of Action Taken.....................................................53
Section 7.6 Record Date for Consents and Waivers....................................................54
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders..............................54
Section 8.2 Supplemental Indentures with Consent of Securityholders.................................55
Section 8.3 Effect of Supplemental Indenture........................................................57
Section 8.4 Documents to Be Given to Trustee........................................................57
Section 8.5 Notation on Securities in Respect of Supplemental Indentures............................57
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE
OR OTHER DISPOSITION
Section 9.1 Issuer May Consolidate, etc., on Certain Terms..........................................57
Section 9.2 Successor Corporation to be Substituted.................................................58
Section 9.3 Opinion of Counsel to be Given Trustee..................................................59
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture.................................................59
Section 10.2 Application by Trustee of Funds Deposited for Payment of Securities.....................61
Section 10.3 Repayment of Moneys Held by Paying Agent................................................62
Section 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years...............62
Section 10.5 Indemnity for U.S. Government Obligations...............................................62
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ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt
from Individual Liability...............................................................62
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities.......63
Section 11.3 Successors and Assigns of Issuer Bound by Indenture.....................................63
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities........................63
Section 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained
Therein.................................................................................63
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.........................................64
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939.................65
Section 11.8 GOVERNING LAW...........................................................................65
Section 11.9 Counterparts............................................................................65
Section 11.10 Effect of Headings......................................................................65
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article................................................................65
Section 12.2 Notice of Redemption; Partial Redemptions...............................................65
Section 12.3 Payment of Securities Called for Redemption.............................................66
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption...........67
Section 12.5 Mandatory and Optional Sinking Funds....................................................67
ARTICLE THIRTEEN
GUARANTEES
Section 13.1 Subsidiary Guarantees...................................................................70
Section 13.2 Execution and Delivery of Subsidiary Guarantee..........................................71
Section 13.3 Subsidiary Guarantors May Consolidate, Etc., on Certain Terms...........................71
Section 13.4 Releases of Subsidiary Guarantees.......................................................71
Section 13.5 Limitation on Subsidiary Guarantor Liability; Contribution..............................72
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THIS SENIOR INDENTURE, dated as of September 28, 2001 among OCEAN
ENERGY, INC., a Delaware corporation (the "Issuer"), OCEAN ENERGY, INC., a
Louisiana corporation and The Bank of New York, a New York banking corporation,
as trustee (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance from time to time
of its unsecured senior debentures, notes or other evidences of indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of
this Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders (as hereinafter defined) thereof, the Issuer and the Trustee
mutually covenant and agree for the equal and proportionate benefit of the
respective Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Definitions. For all purposes of this Indenture and of any
indenture supplemental hereto the following terms shall have the respective
meanings specified in this Section 1.1 (except as otherwise expressly provided
or unless the context otherwise clearly requires). All other terms used in this
Indenture that are defined in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933, as amended, shall
have the meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation.
The words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz.
September 28, 2001.
8
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the amount by which the fair value of the properties and assets 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 the Subsidiary Guarantee of such Subsidiary Guarantor at such
date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" shall have the meaning set forth in Section
6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code Sections 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer
or any committee of such Board duly authorized to act on its behalf.
"Board Resolution" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect.
"Business Day" means, with respect to any Security, a day that (a) in
the Place of Payment (or in any of the Places of Payment, if more than one) in
which amounts are payable, as specified in the form of such Security, and (b) in
the city in which the Corporate Trust Office is located, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act of 1939, then the body performing such duties on
such date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and
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other like intangibles, all in accordance with generally accepted accounting
principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean or include each Person who is
then a Depositary hereunder, and, if at any time there is more than one such
Person, "Depositary" as used with respect to the Securities of any such series
shall mean the Depositary with respect to the Global Securities of such series.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series
of Securities issued to the Depositary for such series in accordance with
Section 2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean, in the case of any Security, the person in whose name such Security
is registered in the security register kept by the Issuer for that purpose in
accordance with the terms hereof.
"Indenture" means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented
or both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
The term "interest" means, when used with respect to non-interest
bearing Securities (including, without limitation, any Original Issue Discount
Security that by its terms bears interest only after maturity or upon default in
any other payment due on such Security), interest payable after maturity
(whether at stated maturity, upon acceleration or redemption or otherwise) or
after the date, if any, on which the Issuer becomes obligated to acquire a
Security, whether upon conversion, by purchase or otherwise.
"Issuer" means (except as otherwise provided in Section 6.8) Ocean
Energy, Inc., a Delaware corporation, and, subject to Article Nine, its
successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer which is signed in its name by the chairman of the Board of Directors,
the president or any vice president of the Issuer.
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"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or any Subsidiary Guarantor or by such other legal counsel
who may be an employee of or counsel to the Issuer and who shall be satisfactory
to the Trustee. Each such opinion shall include the statements provided for in
Section 11.5, if and to the extent required by the provisions of such Section
11.5.
The term "original issue date" of any Security (or portion thereof)
means the earlier of (a) the date of such Security or (b) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
The term "original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"Original Issue Discount Security" means any Security that provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used
with reference to Securities, shall, subject to the provisions of Section 7.4,
mean, as of any particular time, all Securities authenticated and delivered by
the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions thereof,
for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
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(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and interest, if any,
on the Securities of such series are payable as determined in accordance with
Section 2.3.
The term "principal" of a debt security, including any Security, means
the amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the holder of such debt security and upon any acceleration of the maturity of
such debt security).
The term "principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Principal Property" means any real property, manufacturing plant,
processing plant, pipeline, office building, warehouse or other physical
facility, or any other like depreciable or depletable asset of the Issuer or any
Restricted Subsidiary whether owned at the date of this Indenture or thereafter
acquired (other than any facility thereafter acquired for the control or
abatement of atmospheric pollutants or contaminants or water, noise, odor or
other pollution) which in the opinion of the Board of Directors is of material
importance to the total business conducted by the Issuer and its Restricted
Subsidiaries, as a whole; provided, however, that any such property shall not be
deemed a Principal Property if such property does not have a fair value in
excess of 3% of the
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total assets included on a consolidated balance sheet of the Issuer and its
Restricted Subsidiaries prepared in accordance with generally accepted
accounting principles consistently applied.
The term "record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary, and (b) any Subsidiary which was an Unrestricted
Subsidiary but which, subsequent to the date hereof, is designated by the Issuer
(by certified resolution of the Board of Directors delivered to the Trustee) to
be a Restricted Subsidiary; provided, however, that the Issuer may not designate
any such Subsidiary to be a Restricted Subsidiary if the Issuer would thereby
breach any covenant or agreement herein contained (on the assumptions that any
outstanding indebtedness of such Subsidiary was incurred at the time of such
designation and that any Sale and Leaseback Transaction to which such Subsidiary
is then a party was entered into at the time of such designation).
"Sale and Leaseback Transaction" shall have the meaning set forth in
Section 3.7.
"Secured Debt" means indebtedness for money borrowed by the Issuer or a
Restricted Subsidiary (other than indebtedness owed by a Restricted Subsidiary
to the Issuer, by a Restricted Subsidiary to another Restricted Subsidiary or by
the Issuer to a Restricted Subsidiary), that in any such case is secured by (a)
a mortgage or other lien on any Principal Property of the Issuer or a Restricted
Subsidiary, or (b) a pledge, lien or other security interest on any shares of
stock or indebtedness of a Restricted Subsidiary. The amount of Secured Debt at
any time outstanding shall be the amount then owing thereon by the Issuer or a
Restricted Subsidiary.
"Security" or "Securities" (except as otherwise provided in Section
6.8) has the meaning stated in the first recital of this Indenture or, as the
case may be, Securities that have been authenticated and delivered pursuant to
this Indenture.
"Subsidiary" of any Person means (i) any Person of which at the time of
such determination more than 50% of the outstanding voting stock of which is
owned or controlled, directly or indirectly, by such Person or one or more of
the Subsidiaries of that Person or a combination thereof, and (ii) any other
Person in which such Person or one or more of the Subsidiaries of that Person
(or a combination thereof) has the power to control by contract or otherwise the
board of directors or equivalent governing body or otherwise controls such
entity. For the purposes of this definition, "voting stock" means stock of the
class or classes which under ordinary circumstances has voting power to elect at
least a majority of the members of the board of directors, managers or trustees
of
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such corporation, provided that stock that carries only the right to vote
conditionally upon the occurrence of an event shall not constitute voting stock
whether or not such event shall have occurred.
"Subsidiary Guarantee" means any guarantee of a series of Securities by
any Subsidiary Guarantor pursuant to Article Thirteen hereof or pursuant to the
execution and delivery to the Trustee of a supplemental indenture hereto.
"Subsidiary Guarantor" means, at any time, with respect to any series
of Securities, (i) unless otherwise provided with respect to a series of
Securities pursuant to Section 2.3, Ocean Energy, Inc., a Louisiana corporation,
and (ii) any of the Issuer's Restricted Subsidiaries that has become a guarantor
of the Securities pursuant to Section 3.8 or Section 13.1 hereof and has
executed and delivered a supplemental indenture in which such Restricted
Subsidiary agrees to be bound by the terms of this Indenture as a Subsidiary
Guarantor with respect to the Securities of such Series, in each case unless at
such time each Subsidiary Guarantee of such Person with respect to the
Securities of such series has been released in accordance with the provisions of
Article Thirteen hereof.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
8.1 and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and, if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after the date hereof, provided, however, that such Subsidiary shall
not be a successor, directly or indirectly, to any Restricted Subsidiary, and
(b) any Subsidiary whose principal business and assets are located outside the
United States of America, its territories and possessions and Canada or are
located in Puerto Rico, and (c) any Subsidiary the principal business of which
consists of financing or assisting in financing the acquisition or disposition
of products of the Issuer or a Subsidiary by dealers, distributors or other
customers, and (d) any Subsidiary the principal business of which is owning,
leasing, dealing in or developing real property, and (e) any Subsidiary
substantially all the assets of which consist of stock or other securities of a
Subsidiary or Subsidiaries of the character described in clauses (a) through (d)
of this paragraph, in each case unless and until such Subsidiary shall have been
designated to be a Restricted Subsidiary pursuant to clause (b) of the
definition of "Restricted Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in
Section 10.1(B).
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The term "vice president," when used with respect to the Issuer or the
Trustee, means any vice president, regardless of whether designated by a number
or a word or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice or as
otherwise provided in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
Section 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, as may be required to comply with any law or
with any rules or regulations pursuant thereto, or with any rules of any
securities exchange or to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
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 as evidenced by their execution of
such Securities.
Section 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be substantially
as follows:
This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
The Bank of New York, as Trustee
By:
--------------------------------------
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
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This is one of the Securities of the series designated herein referred
to in the within mentioned Indenture.
The Bank of New York, as Trustee
By:
--------------------------------------
as Authenticating Agent
By:
--------------------------------------
Authorized Signatory
Section 2.3 Amount Unlimited, Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and the Securities
of each such series shall rank equally and pari passu with the Securities of
each other series and with all other unsecured and unsubordinated debt of the
Issuer. There shall be established in or pursuant to one or more Board
Resolutions (and, to the extent established pursuant to rather than set forth in
a Board Resolution, in an Officers' Certificate detailing such establishment) or
established in one or more indentures supplemental hereto, prior to the initial
issuance of Securities of any series:
(1) the designation of the Securities of the series, which
shall distinguish the Securities of such series from the Securities of
all other series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or
12.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, on which any such interest shall be payable and
on which a record shall be taken for the determination of Holders to
whom any such interest is payable or the method by which such rate or
rates or date or dates shall be determined or both, including any
provisions under which the interest rate may be varied;
(5) the place or places where and the manner in which the
principal of and interest, if any, on Securities of the series shall be
payable (if other than as provided in Section 3.2) and the office or
agency for the Securities of the series maintained by the Issuer
pursuant to Section 3.2;
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(6) the right, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, at its option and
the period or periods within which, the price or prices (or the method
by which such price or prices shall be determined or both) at which,
the form or method of payment therefor if other than in cash and any
terms and conditions upon which and the manner in which (if different
from the provisions of Article Twelve) Securities of the series may be
so redeemed, purchased or repaid, in whole or in part, pursuant to any
sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase
or repay Securities of the series in whole or in part pursuant to any
mandatory redemption, sinking fund or analogous provisions or at the
option of a Holder thereof and the period or periods within which the
price or prices (or the method by which such price or prices shall be
determined or both) at which, the form or method of payment therefor if
other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve)
Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as
Global Securities;
(11) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
the form and terms of such certificates, documents or conditions;
(12) any trustees, depositaries, authenticating or paying
agents, transfer agents or registrars or any other agents with respect
to the Securities of such series;
(13) any deleted, modified or additional events of default,
remedies or covenants with respect to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be
applicable to Securities of such series;
(15) any provision relating to the issuance of Securities of
such series at an original issue discount (including, without
limitation, the issue price thereof, the rate or rates at which such
original issue discount shall accrue, if any, and the date or dates
from or to which or period or periods during which such original issue
discount shall accrue at such rate or rates);
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(16) if the amounts of payments of principal of and interest
on the Securities of such series are to be determined with reference to
an index, the manner in which such amounts shall be determined;
(17) any right or obligation of Holders of Securities of such
series to convert or exchange such Securities into or for other
securities or property and the terms and conditions governing such
conversion or exchange;
(18) the currency in which the Issuer will pay principal,
premium and interest on the Securities of such series if other than the
United States dollar, including any special provisions relating
thereto;
(19) the terms of any Subsidiary Guarantee of the Securities
of such series if different from those in Article Thirteen, including
the terms on which such Subsidiary Guarantee may be released, and
whether the provisions of Section 3.8 shall apply to Securities of such
series;
(20) the terms of any repurchase or remarketing rights of
third parties with respect to the Securities of such series, and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical,
except as to denomination and except as may otherwise be provided by or pursuant
to the Board Resolution or Officers' Certificate referred to above or as set
forth in any such indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time,
consistent with the terms of this Indenture, if so provided by or pursuant to
such Board Resolution, such Officers' Certificate or in any such indenture
supplemental hereto.
Any such Board Resolution or Officers' Certificate referred to above
with respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall be incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
Section 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. In authenticating the Securities
of
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such series and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive (in the
case of subparagraphs (2), (3) and (4) below only at or before the time of the
first request of the Issuer to the Trustee to authenticate Securities of such
series) and (subject to Section 6.1) shall be fully protected in relying upon,
unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities of such series are not to
be delivered to the Issuer, provided that, with respect to Securities
of a series subject to a Periodic Offering, (a) such Issuer Order may
be delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for
original issue from time to time, in an aggregate principal amount not
exceeding the aggregate principal amount established for such series,
pursuant to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order, (c)
the maturity date or dates, original issue date or dates, interest rate
or rates, if any, and any other terms of Securities of such series
shall be determined by an Issuer Order or pursuant to such procedures,
(d) if provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral or electronic instructions
from the Issuer or its duly authorized agent or agents, which oral
instructions shall be promptly confirmed in writing and (e) after the
original issuance of the first Security of such series to be issued,
any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or
pursuant to which the forms and terms of the Securities of such series
were established;
(3) an Officers' Certificate setting forth the form or forms
and terms of the Securities stating that the form or forms and terms of
the Securities have been established pursuant to Sections 2.1 and 2.3
and comply with this Indenture and covering such other matters as the
Trustee may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel,
or a letter from legal counsel addressed to the Trustee permitting it
to rely on an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been duly
authorized and established in conformity with the provisions of this Indenture;
and
(b) when the Securities of such series have been executed by the Issuer
and authenticated by the Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the purchasers thereof, they
will have been duly issued under this Indenture and will be valid and
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legally binding obligations of the Issuer, enforceable in accordance with their
respective terms, and will be entitled to the benefits of this Indenture.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Delaware and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities of any series under this Section 2.4 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken by the
Issuer or if the Trustee in good faith by its board of directors or board of
trustees, executive committee or a trust committee of directors or trustees or
Responsible Officers shall determine that such action would expose the Trustee
to personal liability to existing Holders or would adversely affect the
Trustee's own rights, duties or immunities under the Securities, this Indenture
or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section 2.4 and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of
all of the Securities of such series to be issued in the form of Global
Securities and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions, and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security may
not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation.
Section 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer
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of the Issuer, which signature may, but need not, be attested by its secretary
or one of its assistant secretaries. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such reproduction of any such signature
shall not affect the validity or enforceability of any Security that has been
duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
Section 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable in registered form in
denominations established as contemplated by Section 2.3 or, with respect to the
Securities of any series, if not so established, in denominations of $1,000 and
any integral multiple thereof. The Securities of each series shall be numbered,
lettered or otherwise distinguished in such manner or in accordance with such
plan as the officers of the Issuer executing the same may determine with the
approval of the Trustee, as evidenced by the execution and authentication
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest, if any, shall be payable on the dates, established as contemplated by
Section 2.3.
The Person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a)
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at the close of business on a subsequent record date (which shall be not less
than five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Securities not less than 15 days preceding such subsequent record date or (b)
as determined by such other procedure as is mutually acceptable to the Issuer
and the Trustee. The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Securities of such series established as contemplated by Section 2.3, or, if
no such date is so established, if such interest payment date is the first day
of a calendar month, the fifteenth day of the next preceding calendar month or,
if such interest payment date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such record date is a Business
Day.
Section 2.8 Registration Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of
any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same series, maturity date, interest rate, if any,
and original issue date in authorized denominations for a like aggregate
principal amount.
All Securities presented for registration of transfer shall (if so
required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by, the Holder or his attorney duly
authorized in writing.
At the option of the Holder thereof, Securities of any series (other
than a Global Security, except as set forth below) may be exchanged for a
Security or Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Securities to be
exchanged at the agency of the Issuer that shall be maintained for such purpose
in accordance with Section 3.2. All Securities surrendered upon any exchange or
transfer provided for in this Indenture shall be promptly cancelled by the
Trustee in accordance with its customary procedures.
The Issuer 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 of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
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The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing or publication of notice of redemption of Securities of such
series to be redeemed, (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed or (c) any Security
if the Holder thereof has exercised his right, if any, to require the Issuer to
repurchase such Security in whole or in part, except the portion of such
Security not required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a part of the Securities
of a series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such
successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.4, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not appointed
by the Issuer within 90 days after the Issuer receives such notice or becomes
aware of such ineligibility, the Issuer's election pursuant to Section 2.3 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that
the Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary, a new Security
or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant to
this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall
be valid and legally binding obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated, defaced or
be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
the Trustee or the Issuer to indemnify and defend and to save each of the
Trustee and the Issuer harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof
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except in the case of a mutilated or defaced Security), if the applicant for
such payment shall furnish to the Issuer and to the Trustee and any agent of the
Issuer or the Trustee such security or indemnity as any of them may require to
hold each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to the Trustee's satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be canceled by it in
accordance with its customary procedures; and no Securities shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall return canceled Securities to the
Issuer or otherwise deliver appropriate evidence of such cancellation. If the
Issuer or its agent shall acquire any of the Securities, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are delivered to the Trustee or its
agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of
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such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2 and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations. Until
so exchanged, the temporary Securities of any series shall be entitled to the
same benefits under this Indenture as definitive Securities of such series,
unless otherwise established pursuant to Section 2.3.
Section 2.12 CUSIP Numbers. The Issuer in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Issuer will
notify the Trustee of any change in "CUSIP" numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal of
and interest, if any, on each of the Securities at the place, at the respective
times and in the manner provided in the Securities.
Section 3.2 Offices for Notices and Payments, etc. So long as any of
the Securities are Outstanding, the Issuer will maintain in each Place of
Payment, an office or agency where the Securities may be presented for payment,
an office or agency where the Securities may be presented for registration of
transfer and for exchange as in this Indenture provided, and an office or agency
where notices and demands to or upon the Issuer in respect of the Securities or
of this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
Section 3.3 No Interest Extension. In order to prevent any accumulation
of claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
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Section 3.4 Appointments to Fill Vacancies in Trustee's Office. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of the
Trustee, will appoint, in the manner provided in Section 6.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 3.5 Provision as to Paying Agent.
(a) If the Issuer shall appoint a paying agent other than the Trustee,
it will cause such paying agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 3.5,
(1) that it will hold all sums held by it as such agent for
the payment of the principal of or interest, if any, on the Securities
(whether such sums have been paid to it by the Issuer or by any other
obligor on the Securities) in trust for the benefit of the Holders of
the Securities and the Trustee; and
(2) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities) to make any payment
of the principal of or interest, if any, on the Securities when the
same shall be due and payable; and
(3) that it will, at any time during the continuance of any
such failure, upon the written request of the Trustee, forthwith pay to
the Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or
before each due date of the principal of or interest, if any, on the Securities,
set aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Issuer (or by any other obligor under the Securities) to
make any payment of the principal of or interest, if any, on the Securities when
the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will,
on or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal or
interest, if any, so becoming due, such sum to be held in trust for
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the benefit of the Persons entitled to such principal or interest, if any, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of its action or failure so to act.
Section 3.6 Restriction on Creation of Secured Debt. So long as any of
the Securities are outstanding, the Issuer shall not at any time create, incur,
assume or guarantee, and shall not cause, suffer or permit a Restricted
Subsidiary to create, incur, assume or guarantee, any Secured Debt without
making effective provision (and the Issuer covenants that in such case it will
make or cause to be made such effective provision) whereby the Securities then
Outstanding and any other indebtedness of or guaranteed by the Issuer or such
Restricted Subsidiary then entitled thereto, subject to applicable priorities of
payment, shall be secured by such mortgage, security interest, pledge, lien or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, that if any such mortgage, security
interest, pledge, lien or encumbrance securing such indebtedness ceases to
exist, such equal and ratable security for the benefit of the Holders of
Securities shall automatically cease to exist without any further action;
provided further that if such indebtedness is expressly subordinated to the
Securities, the mortgage, security interest, pledge, lien or encumbrance
securing such indebtedness shall be subordinate and junior to the mortgage,
security interest, pledge, lien or encumbrance securing the Securities with the
same relative priority as such indebtedness shall have with respect to the
Securities; provided further, that the foregoing covenants shall not be
applicable to the following:
(a) (i) Any mortgage, security interest, pledge, lien or encumbrance on
any property hereafter acquired (including acquisition through merger or
consolidation) or constructed by the Issuer or a Restricted Subsidiary and
created contemporaneously with, or within twelve months after, such acquisition
or the completion of construction to secure or provide for the payment of all or
any part of the purchase price of such property or the cost of construction
thereof, as the case may be; or (ii) any mortgage on property (including any
unimproved portion of partially improved property) of the Issuer or a Restricted
Subsidiary created within twelve months of completion of construction of a new
plant or plants on such property to secure all or part of the cost of such
construction if, in the opinion of the Board of Directors, such property or such
portion thereof was prior to such construction substantially unimproved for the
use intended by the Issuer; or (iii) the acquisition of property subject to any
mortgage, security interest, pledge, lien or encumbrance upon such property
existing at the time of acquisition thereof, whether or not assumed by the
Issuer or such Restricted Subsidiary; or (iv) any mortgage, security interest,
pledge, lien or encumbrance existing on the property or on the outstanding
shares or indebtedness of a corporation or other entity at the time such
corporation or other entity shall become a Restricted Subsidiary; or (v) any
mortgage, security interest, pledge, lien or encumbrance on property of a
corporation or other entity existing at the time such corporation or other
entity is merged into or consolidated with the Issuer or a Restricted Subsidiary
or at the time of a sale, lease or other disposition of the properties of a
corporation or other entity as an entirety or substantially as an entirety to
the Issuer or a Restricted Subsidiary; or
(b) Mortgages on property of the Issuer or a Restricted Subsidiary in
favor of the United States of America or any State thereof or any foreign
government, or any department, agency or
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instrumentality or political subdivision of any thereof, to secure partial,
progress, advance or other payments pursuant to any contract or statute or to
secure any indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of construction of the property subject to such
mortgages; or
(c) Any mortgage, security interest, pledge, lien or encumbrance
existing on property owned by the Issuer or any of its Subsidiaries on the date
of this Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance
created pursuant to the creation of trusts or other arrangements funded solely
with cash, cash equivalents or other marketable investments or securities of the
type customarily subject to such arrangements in customary financial practice
with respect to long-term or medium-term indebtedness for money borrowed, the
sole purpose of which is to make provision for the retirement or defeasance,
without prepayment of indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance
securing (i) all or part of the cost of exploring, producing, gathering,
processing, marketing, drilling or developing any properties of the Company or
any of its Subsidiaries, or securing indebtedness incurred to provide funds
therefor, or (ii) indebtedness incurred to finance all or part of the cost of
acquiring, constructing, altering, improving or repairing any such property or
assets, or securing indebtedness incurred to provide funds therefor; or
(f) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any mortgage, security
interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs
(a) through (e); provided, however, that the principal amount of Secured Debt
secured thereby shall not exceed the principal amount outstanding at the time of
such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the mortgage,
security interest, pledge, lien or encumbrance so extended, renewed or replaced
and additions to such property.
Notwithstanding the foregoing provisions of this Section 3.6, the
Issuer and any one or more Restricted Subsidiaries may create, incur, assume or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount that, without duplication, together with all
other Secured Debt of the Issuer and its Restricted Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Secured Debt
permitted to be secured under subparagraphs (a) through (f) above) and the
aggregate value of the Sale and Leaseback Transactions (as defined in Section
3.7) in existence at such time (not including Sale and Leaseback Transactions
the proceeds of which have been or will be applied in accordance with clause (b)
of Section 3.7) does not at the time exceed 10% of Consolidated Net Tangible
Assets. Solely for purposes of subparagraphs (a) through (f) above, the term
"mortgage" shall include any arrangements in connection with a production
payment or similar financing arrangement.
Section 3.7 Restriction on Sale and Leaseback Transactions. The Issuer
will not, and will not permit any Restricted Subsidiary to, sell or transfer
(except to the Issuer or to one or
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more Restricted Subsidiaries, or both) any Principal Property owned by it and
which has been in full operation for more than 120 days prior to such sale or
transfer with the intention (i) of taking back a lease on such property (other
than a lease for a period not exceeding 36 months) and (ii) that the use by the
Issuer or such Restricted Subsidiary of such property will be discontinued on or
before the expiration of the term of such lease (any such transaction being
herein referred to as a "Sale and Leaseback Transaction"), unless (a) the Issuer
or such Restricted Subsidiary would be entitled, pursuant to the provisions of
Section 3.6, to incur Secured Debt equal in amount to the amount realized or to
be realized upon such sale or transfer secured by a mortgage on the property to
be leased without equally and ratably securing the Securities, or (b) the Issuer
or a Restricted Subsidiary shall apply an amount equal to the value of the
property so leased to the retirement (other than any mandatory retirement),
within 120 days of the effective date of any such arrangement, of indebtedness
for money borrowed by the Issuer or any Restricted Subsidiary (other than such
indebtedness owned by the Issuer or any Restricted Subsidiary) which was
recorded as funded debt as of the date of its creation and which, in the case of
such indebtedness of the Issuer, is not subordinate and junior in right of
payment to the prior payment of the Securities; provided, however, that the
amount to be so applied to the retirement of such indebtedness shall be reduced
by (i) the aggregate principal amount of any Securities delivered within 120
days of the effective date of any such arrangement to the Trustee for retirement
and cancellation, and (ii) the aggregate principal amount of such indebtedness
(other than the Securities) retired by the Issuer or a Restricted Subsidiary
within 120 days of the effective date of any such arrangement.
The term "value" shall mean, with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Leaseback Transaction, or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction, as determined by the Board of
Directors, in either case divided first by the number of full years of the term
of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
Section 3.8 Additional Subsidiary Guarantors.
This Section 3.8 shall apply to any series of Securities unless
otherwise provided with respect to such series pursuant to Section 2.3. With
respect to any series of Securities to which this Section 3.8 applies, the
Issuer shall not at any time permit any Restricted Subsidiary to guarantee the
payment of any indebtedness of the Issuer unless:
(a) if such Restricted Subsidiary is not a Subsidiary Guarantor with
respect to such series of Securities at such time: (i) such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture hereto
in which such Restricted Subsidiary agrees to be bound by the terms of this
Indenture as a Subsidiary Guarantor with respect to such series of Securities;
and (ii) such Restricted Subsidiary shall deliver to the Trustee an Opinion of
Counsel to the effect that such supplemental indenture has been duly executed
and authorized and constitutes a valid, binding and enforceable obligation of
such Restricted Subsidiary, except insofar as enforcement thereof may be
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limited by bankruptcy, insolvency or similar laws (including, without
limitation, all laws relating to fraudulent transfers) and except insofar as
enforcement thereof is subject to general principles of equity; and
(b) with respect to any guarantee of subordinated indebtedness of the
Issuer by a Restricted Subsidiary, such guarantee shall be subordinated to such
Restricted Subsidiary's Subsidiary Guarantee with respect to such series of
Securities.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the Securities
covenant and agree that they will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each March 1 and
September 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,
provided that if and so long as the Trustee shall be the registrar for such
series, such list shall not be required to be furnished.
Section 4.2 Preservation and Disclosure of Securityholders Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each series of Securities (i) contained in the most recent list furnished to it
as provided in Section 4.1, and (ii) received by it in the capacity of registrar
or paying agent for such series, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 4.1 upon receipt of a new list so
furnished.
(b) In case three or more Holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
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(i) afford to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the case
may be, whose names and addresses appear in the information preserved
at the time by the Trustee, in accordance with the provisions of
subsection (a) of this Section 4.2, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request
of such applicants, mail to each Securityholder of such series or all
Holders of Securities, as the case may be, whose name and address
appears in the information preserved at the time by the Trustee in
accordance with the provisions of subsection (a) of this Section 4.2 a
copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee
of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days
after such tender, the Trustee shall mail to such applicants and file
with the Commission, together with a copy of the material to be mailed,
a written statement to the effect that, in the opinion of the Trustee,
such mailing would be contrary to the best interests of the Holders of
Securities of such series or of all Securities, as the case may be, or
would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so
filed, shall enter an order refusing to sustain any of such objections
or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall
enter an order so declaring, the Trustee shall mail copies of such
material to all such Securityholders with reasonable promptness after
the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(iii) Each and every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee
shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities
in accordance with the provisions of subsection (b) of this Section
4.2, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
Section 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other
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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 Issuer may
be required to file with the Commission pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended; or, if the Issuer is not
required to file information, documents or reports pursuant to either of such
Sections, then to file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934, as
amended, in respect of a debt security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) to 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
Issuer with the conditions and covenants provided for in this Indenture as may
be required from time to time by such rules and regulations;
(c) if there are any Original Issue Discount Securities Outstanding, to
file with the Trustee promptly after the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on such Securities as of the end of such year and
(ii) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time;
(d) to transmit by mail to the Holders of Securities within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 4.4(c), such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to subsections (a), (b) and
(c) of this Section 4.3 as may be required to be transmitted to such Holders by
rules and regulations prescribed from time to time by the Commission; and
(e) furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(e), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.4 Reports by the Trustee.
(a) Within 60 days after January 1 of each year commencing with the
year 2002, the Trustee shall transmit by mail to the Holders of Securities, as
provided in subsection (c) of this Section, a brief report dated as of such
January 1 with respect to any of the following events which
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may have occurred within the last 12 months (but if no such event has occurred
within such period, no report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of, or any material change to, a
relationship specified in paragraph (i) through (x) of Section 6.8 (c);
(iii) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of all Securities Outstanding on the
date of such report;
(iv) the amount, interest rate, if any, and maturity date of
all other indebtedness owing by the Issuer (or by any other obligor on
the Securities) to the Trustee in its individual capacity on the date
of such report, with a brief description of any property held as
collateral security therefor, except any indebtedness based upon a
creditor relationship arising in any manner described in Section
6.13(b) (2), (3), (4) or (6);
(v) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has
not previously reported; and
(vii) any action taken by the Trustee in the performance of
its duties under this Indenture which it has not previously reported
and which in its opinion materially affects the Securities, except
action in respect of a default, notice of which has been or is to be
withheld by it in accordance with the provisions of Section 5.8.
(b) The Trustee shall transmit to the Securityholders of each series,
as provided in subsection (c) of this Section 4.4, a brief report with respect
to the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee, as
such, since the date of the last report transmitted pursuant to the provisions
of subsection (a) of this Section 4.4 (or if no such report has yet been so
transmitted, since the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee and which it has
not previously reported pursuant to this subsection (b), except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time
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aggregate 10% or less of the principal amount of all Securities Outstanding at
such time, such report to be transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and addresses
of such Holders appear upon the registry books of the Issuer; and
(ii) to all other Persons to whom such reports are required to
be transmitted pursuant to Section 313(c) of the Trust Indenture Act of
1939.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange or delisted from
trading thereon.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
Section 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default), unless it is either
inapplicable to a particular series or it is specifically deleted or modified in
or pursuant to the Board Resolution or supplemental indenture establishing such
series of Securities or in the form of Security, for such series:
(a) default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, of
the Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Securities of such series, as and when such
obligation shall become due and payable as in this Indenture expressed; or
(d) failure on the part of the Issuer duly to observe or perform any
other of the covenants or agreements on the part of the Issuer in the Securities
of such series or in this Indenture continued for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Issuer by the Trustee by certified or registered
mail, or to
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the Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer or any Subsidiary Guarantor with
respect to Securities of such series, a court having jurisdiction shall enter an
order for relief with respect to the Issuer or such Subsidiary Guarantor under
the Bankruptcy Code or without the consent of the Issuer or such Subsidiary
Guarantor a court having jurisdiction shall enter a judgment, order or decree
adjudging the Issuer or such Subsidiary Guarantor a bankrupt or insolvent, or
enter an order for relief for reorganization, arrangement, adjustment or
composition of or in respect of the Issuer or such Subsidiary Guarantor under
the Bankruptcy Code or applicable state insolvency law and the continuance of
any such judgment, order or decree is unstayed and in effect for a period of 90
consecutive days; or
(f) the Issuer or any Subsidiary Guarantor with respect to Securities
of such series shall institute proceedings for entry of an order for relief with
respect to itself under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or such Subsidiary Guarantor or
of substantially all of its property, or the Issuer or such Subsidiary Guarantor
shall make a general assignment for the benefit of creditors as recognized under
the Bankruptcy Code; or
(g) any other Event of Default provided with respect to the Securities
of such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such
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series to the date of such payment or deposit) and the reasonable compensation,
disbursements, expenses and advances of the Trustee, and any and all defaults
under this Indenture, other than the nonpayment of such portion of the principal
amount of and accrued interest, if any, on Securities of such series which shall
have become due by acceleration, shall have been cured or shall have been waived
in accordance with Section 5.7 or provision deemed by the Trustee to be adequate
shall have been made therefor, then and in every such case the Holders of a
majority in aggregate principal amount of the Securities of such series then
Outstanding, by written notice to the Issuer and to the Trustee, may rescind and
annul such declaration and its consequences; but no such rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If any Event of Default with respect to the
Issuer specified in Section 5.1(e) or 5.1(f) occurs, all unpaid principal amount
(or, if the Securities of any series then Outstanding are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of each such series) and accrued interest on all Securities of each
series then Outstanding shall ipso facto become and be immediately due and
payable without any declaration or other act by the Trustee or any
Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a),
(b) or (c), the Trustee shall not be charged with knowledge of any Event of
Default unless written notice thereof shall have been given to a Responsible
Officer by the Issuer, a paying agent or any Securityholder.
Section 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 30 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
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If the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses, including
counsel fees and expenses incurred by it up to the date of such distribution. To
the extent that such payment of reasonable compensation, expenses and counsel
fees and expenses out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, moneys, securities and other
property which the Holders of the Securities of such series may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee without the
possession of any of the Securities, or the production thereof at any trial or
other proceeding relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
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Section 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
of all other expenses and liabilities incurred, and all advances made, by the
Trustee pursuant to Section 6.6 except as a result of its negligence or bad
faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if any, on
the Securities of such series, in the order of the maturity of the installments
of such interest, if any, with interest (to the extent that such interest has
been collected by the Trustee) upon the overdue installments of interest, if
any, at the rate borne by the Securities of such series, such payment to be made
ratably to the Persons entitled thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for principal
and interest, if any, with interest on the overdue principal and (to the extent
that such interest has been collected by the Trustee) upon overdue installments
of interest, if any, at the rate borne by the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Securities of such series, then to the payment of such
principal and interest, if any, without preference or priority of principal over
interest or of interest over principal, or of any installment of interest over
any other installment of interest, or of any Security over any other Security,
ratably to the aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer, its
successors or assigns, or to whomsoever may be lawfully entitled to receive the
same.
No claim for interest which in any manner at or after maturity shall
have been transferred or pledged separate or apart from the Securities to which
it relates, or which in any manner shall have been kept alive after maturity by
an extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
Section 5.4 Proceedings by Securityholders. No Holder of any Securities
of any series then Outstanding shall have any right by virtue of or by availing
of any provision of this Indenture to institute any suit, action or proceeding
in equity or at law upon or under or with respect
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to this Indenture or for the appointment of a receiver or trustee or similar
official, or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding
shall have made written request to the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding, it being
understood and intended, and being expressly covenanted by the Holder of every
Security of such series with every other taker and Holder and the Trustee, that
no one or more Holders of Securities of such series shall have any right in any
manner whatever by virtue of or by availing of any provision of this Indenture
or of the Securities to affect, disturb or prejudice the rights of any other
Holder of such Securities of such series, or to obtain or seek to obtain
priority over or preference as to any other such Holder, or to enforce any right
under this Indenture or the Securities, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Securities of such
series.
Notwithstanding any other provisions in this Indenture, however, the
right of any Holder of any Security to receive payment of the principal of and
interest, if any, on such Security, on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates shall not be impaired or affected
without the consent of such Holder.
Section 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
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Section 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of such series; provided, however, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine upon advice of counsel that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability. The
Holders of a majority in aggregate principal amount of the Securities of any
series then Outstanding may on behalf of the Holders of all of the Securities of
such series waive any past default or Event of Default hereunder and its
consequences except a default in the payment of interest, if any, on, or the
principal of, the Securities of such series. Upon any such waiver the Issuer,
the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 5.7, said default or Event
of Default shall for all purposes of the Securities and this Indenture be deemed
to have been cured and to be not continuing.
Section 5.8 Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f) and (g) of Section 5.1, not including
periods of grace, if any, provided for therein and irrespective of the giving of
the written notice specified in said clause (d) but in the case of any default
of the character specified in said clause (d) no such notice to Securityholders
shall be given until at least 60 days after the giving of written notice thereof
to the Issuer pursuant to said clause (d), as the case may be); provided,
however, that, except in the case of default in the payment of the principal of
or interest, if any, on any of the Securities, or in the payment or satisfaction
of any sinking fund or other purchase obligation, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or Responsible Officers
or both of the Trustee in good faith determines that the withholding of such
notice is in the best interests of the Securityholders.
Section 5.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the cost of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorney's fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses
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made by such party litigant; but the provisions of this Section 5.9 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Securities of any series then Outstanding, or to
any suit instituted by any Securityholders for the enforcement of the payment of
the principal of or interest, if any, on any Security against the Issuer on or
after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise with respect to such series of Securities such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to
the Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or
other facts stated therein);
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(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.7 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture; and
(d) whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
Section 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely conclusively and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice, request,
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate or Issuer
Order (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Issuer;
(c) the Trustee may consult with counsel of its selection and any
advice of such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture (including, without limitation, pursuant to Section 5.1), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
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(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have notice of any Default of
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
Section 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
Section 6.4 Trustee and Agents May Hold Securities; Collections, etc.
The Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions of
Section 10.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held
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in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by mandatory
provisions of law. Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any moneys received by it
hereunder.
Section 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the Holders of particular Securities, and the Securities are
hereby subordinated to such senior claim. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Section 5.1
or in connection with Article Five hereof, the expenses (including the
reasonable fees and expenses of its counsel) and the compensation for the
service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
Section 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
Section 6.8 Qualification of Trustee; Conflicting Interests.
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(a) If the Trustee has or shall acquire any conflicting interest (as
defined in subsection (c)), then within 90 days after ascertaining that it has
such conflicting interest, and if the default (as defined in subsection (c)) to
which such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, the Trustee shall
either eliminate such conflicting interest or, except as otherwise provided
below, resign, and the Issuer shall take prompt steps to have a successor
appointed in the manner provided in Section 6.10.
(b) If the Trustee shall fail to comply with the provisions of
subsection (a), the Trustee shall, within 10 days after the expiration of such
90-day period, transmit notice of such failure to the Securityholders in the
manner and to the extent provided in Section 4.4 and, subject to the provisions
of Section 5.9, unless the Trustee's duty to resign is stayed as provided below,
any Securityholder who has been a bona fide Holder of Securities for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor, if the Trustee fails, after written request thereof
by such Securityholder, to comply with the provisions of subsection (a).
Except in the case of a default in the payment of the principal of or
interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived
during a reasonable period and under the procedures described in such
application, and
(ii) a stay of the Trustee's duty to resign will not be
inconsistent with the interests of Holders of the Securities.
The filing of such an application shall automatically stay the
performance of the duty to resign until the Commission orders otherwise. Any
resignation of the Trustee shall become effective only upon the appointment of a
successor trustee in accordance with the provisions of Section 6.10 and such
successor's acceptance of such an appointment.
(c) For the purposes of this Section 6.8, the Trustee shall be deemed
to have a conflicting interest with respect to Securities of any series if the
Securities of such series are in default (as determined in accordance with the
provisions of Section 5.1, but exclusive of any period of grace or requirement
of notice) and
(i) the Trustee is trustee under this Indenture with respect
to the Outstanding securities of any other series or is a trustee under
another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the Issuer are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture; provided that there shall be excluded from the
operation of this paragraph (i), this Indenture with respect to the
Securities of any other series and there shall also be so excluded any
other indenture or indentures
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under which other securities, or certificates of interest or
participation in other securities, of the Issuer are outstanding if (x)
this Indenture is and, if applicable, this Indenture and any series
issued pursuant to this Indenture and such other indenture or
indentures are wholly unsecured and rank equally and such other
indenture or indentures are hereafter qualified under the Trust
Indenture Act of 1939, unless the Commission shall have found and
declared by order pursuant to Section 305(b) or Section 307(c) of the
Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of such series
and one or more other series, or the provisions of this Indenture and
the provisions of such other indenture or indentures which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of such series and such other series, or under
this Indenture or such other indenture or indentures, or (y) the Issuer
shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that trusteeship
under this Indenture with respect to Securities of such series and such
other series, or under this Indenture and such other indenture or
indentures is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under this
Indenture with respect to Securities of such series and such other
series, or under this Indenture and such other indentures;
(ii) the Trustee or any of its directors or executive officers
is an underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is
directly or indirectly controlled by or is under direct or indirect
common control with an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or representative
of the Issuer, or of an underwriter (other than the Trustee itself) for
the Issuer who is currently engaged in the business of underwriting,
except that (x) one individual may be a director or an executive
officer, or both, of the Trustee and a director or an executive
officer, or both, of the Issuer, but may not be at the same time an
executive officer of both the Trustee and the Issuer; (y) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer, or both, of the Trustee and a director of the Issuer; and (z)
the Trustee may be designated by the Issuer or by any underwriter for
the Issuer to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent, or depositary, or
in any other similar capacity, or, subject to the provisions of
subsection (c) (i) of this Section, to act as trustee, whether under an
indenture or otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Issuer or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such
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persons; or 10% or more of the voting securities of the Trustee is
beneficially owned either by an underwriter for the Issuer or by any
director, partner, or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (x) 5% or
more of the voting securities or 10% or more of any other class of
security of the Issuer, not including the Securities issued under this
Indenture and securities issued under any other indenture under which
the Trustee is also trustee, or (y) 10% or more of any class of
security of an underwriter for the Issuer;
(vii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 5% or more
of the voting securities of any person who, to the knowledge of the
Trustee, owns 10% or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect common control
with, the Issuer;
(viii) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, 10% or more
of any class security of any person who, to the knowledge of the
Trustee, owns 50% or more of the voting securities of the Issuer;
(ix) the Trustee owns on the date of default (as determined in
accordance with the provisions of Section 5.1, but exclusive of any
period of grace or requirement of notice) or on any anniversary of such
default while such default remains outstanding, in the capacity of
executor, administrator, testamentary or inter vivos trustee, guardian,
committee or conservator, or in any other similar capacity, an
aggregate of 25% or more of the voting securities, or of any class of
security, of any Person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraphs (vi), (vii) or (viii) of this subsection. As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition, to
the extent that such securities included in such estate do not exceed
25% of such voting securities or 25% of any such class of security.
Promptly after the dates of any such default and annually in each
succeeding year that the Securities remain in default, the Trustee
shall make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Issuer fails to
make payment in full of principal of or interest on any of the
Securities when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such Securities in any of the
above-mentioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this paragraph, all such Securities so held by the
Trustee, with sole or joint control over such Securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee for the purposes of
paragraphs (vi), (vii) and (viii) of this subsection; or
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(x) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 6.13(b), the Trustee shall be or
shall become a creditor of the Issuer.
For purposes of subsection (c) (i), the term "series of securities" or
"series" means a series, class or group of securities issuable under an
indenture pursuant to the terms of which holders of one such series may vote to
direct the Trustee, or otherwise take action pursuant to a vote of such holders,
separately from holders of another such series; provided that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in subsections (c) (v) to (ix)
inclusive of this Section 6.8 shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of subsections (c) (iii) or (vii) of this Section.
For the purposes of subsections (c) (vi), (vii), (viii) and (ix), of
this Section 6.8, only,
(A) the terms "security" and "securities" shall include only
such securities as are generally known as corporate securities, but
shall not include any note or other evidence of indebtedness issued to
evidence an obligation to repay moneys lent to a person by one or more
banks, trust companies, or banking firms, or any certificate of
interest or participation in any such note or evidence of indebtedness;
(B) an obligation shall be deemed to be in default when a
default in payment of principal shall have continued for 30 days or
more and shall not have been cured; and
(C) the Trustee shall not be deemed to be the owner or holder
of (x) any security which it holds as collateral security, as trustee
or otherwise, for an obligation which is not in default as defined in
clause (B) above, or (y) any security which it holds as collateral
security under this Indenture, irrespective of any default hereunder,
or (z) any security which it holds as agent for collection, or as
custodian, escrow agent, or depositary, or in any similar
representative capacity.
Except as provided above, the word "security" or "securities" as used
in this Section 6.8 shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section 6.8:
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(i) the term "underwriter" when used with reference to the
Issuer shall mean every person who, within a one year period prior to
the time as of which the determination is made, was an underwriter of
any security of the Issuer outstanding at the time of the
determination;
(ii) the term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a
corporation, a partnership, an association, a joint-stock company, a
trust, an unincorporated organization, or a government or political
subdivision thereof; as used in this paragraph, the term "trust" shall
include only a trust where the interest or interests of the beneficiary
or beneficiaries are evidenced by a security;
(iv) the term "voting security" shall mean any security
presently entitling the owner or holder thereof to vote in the
direction or management of the affairs of a person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or holder of
such security are presently entitled to vote in the direction or
management of the affairs of a person;
(v) the term "Issuer" shall mean any obligor upon the
Securities; and
(vi) the term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(e) The percentages of voting securities and other securities specified
in this Section 6.8 shall be calculated in accordance with the following
provisions:
(i) a specified percentage of the voting securities of the
Trustee, the Issuer or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person;
(ii) a specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding;
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(iii) the term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security;
(iv) the term "outstanding" means issued and not held by or
for the account of the issuer; the following securities shall not be
deemed outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(C) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or interest
or otherwise; and
(D) securities held in escrow if placed in escrow by the
issuer thereof;
provided, that any voting securities of an issuer shall be deemed outstanding if
any person other than the issuer is entitled to exercise the voting rights
thereof; and
(v) a security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed sufficient
to constitute such series different classes and provided, further,
that, in the case of unsecured evidences of indebtedness, differences
in the interest rates or maturity dates thereof shall not be deemed
sufficient to constitute them securities of different classes, whether
or not they are issued under a single indenture.
Section 6.9 Persons Eligible for Appointment as Trustee. The Trustee
for each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any state or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by federal,
state or District of Columbia authority, or a corporation or other Person
permitted to act as trustee by the Commission. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. No obligor upon the Securities or any
Affiliate of such obligor shall serve as trustee upon the Securities. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section
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6.9, the Trustee shall resign immediately in the manner and with the effect
specified in Section 6.10.
Section 6.10 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign with respect to one or more or all series of Securities by
giving written notice of resignation to the Issuer. Upon receiving such notice
of resignation, the Issuer shall promptly appoint a successor trustee or
trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the mailing of such notice of resignation, the resigning trustee may,
at the expense of the Issuer, petition any court of competent jurisdiction for
the appointment of a successor trustee, or any Securityholder who has been a
bona fide Holder of a Security or Securities of the applicable series for at
least six months may, subject to the provisions of Section 5.9, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 6.8 with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a
bona fide Holder of a Security or Securities of such series for at
least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 6.9 and shall fail to resign after written
request therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series
of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section 5.9,
any Securityholder who has been a bona fide Holder of a Security or Securities
of such series for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee
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with respect to such series. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may, at the expense of the
Issuer, petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable series for at least six months may,
subject to the provisions of Section 5.9, on behalf of himself and all others
similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.10 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee for such series hereunder; but, nevertheless, on the
written request of the Issuer or of the successor trustee, upon payment of its
charges then unpaid, the trustee ceasing to act shall, subject to Section 10.4,
pay over to the successor trustee all moneys at the time held by it hereunder
and shall execute and deliver an instrument transferring to such successor
trustee all such rights, powers, duties and obligations. Upon request of any
such successor trustee, the Issuer shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor trustee is appointed with respect to the Securities of
one or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to
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which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such trustees
co-trustees of the same trust and that each such trustee shall be trustee of a
trust or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in
this Section 6.11, the Issuer shall give notice thereof to the Holders of
Securities of each series affected, by mailing such notice to such Holders at
their addresses as they shall appear on the registry books. If the Issuer fails
to give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or 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 that such corporation shall be qualified under the
provisions of Section 6.8 and eligible under the provisions of Section 6.9,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
Section 6.13 Preferential Collection of Claims Against the Issuer.
Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Issuer
within three months prior to a default, as defined in subsection (c) of this
Section 6.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee
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individually, the Holders of the Securities and the holders of other indenture
securities (as defined in this Section 6.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three month period
and valid as against the Issuer and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in subsection (a) (2) of this section, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Issuer
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
month period, or an amount equal to the proceeds of any such property,
if disposed of, subject, however, to the rights, if any, of the Issuer
and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Issuer) who is liable
thereon, (ii) the proceeds of the bona fide sale of any such claim by
the Trustee to a third Person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against the
Issuer in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three month period and such property was received as
security therefor simultaneously with the creation thereof, and if the
Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default as defined in subsection (c) of this Section would occur
within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three month period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and,
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to the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, such Securityholders and the holders
of other indenture securities realize, as a result of payments from such special
account and payments of dividends on claims filed against the Issuer in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Bankruptcy Code or applicable state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Issuer of the funds and property in such special
account, and before crediting to the respective claims of the Trustee, such
Securityholders and the holders of other indenture securities, dividends on
claims filed against the Issuer in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Bankruptcy Code or applicable state law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Bankruptcy Code or applicable
state law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, such Securityholders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three month period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three month period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three month
period; and
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(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section 6.13 a
creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction or by this Indenture for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(2)
of this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25 (a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) (3) of this Section.
(c) As used in this Section 6.13:
(1) the term "default" shall mean any failure to make payment
in full of the principal of or interest on any of the Securities when
and as such principal or interest becomes due and payable;
(2) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand;
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(3) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Issuer for the purpose of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to, possession of, or a lien upon the goods, wares or merchandise or
the receivables or proceeds arising from the sale of the goods, wares
or merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation of
the creditor relationship with the Issuer arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(4) the term "Issuer" shall mean any obligor upon the
Securities.
Section 6.14 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to the Trustee's Certificate of Authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor
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Authenticating Agent which shall be acceptable to the Issuer and the Issuer
shall provide notice of such appointment to all Holders of Securities of such
series in the manner and to the extent provided in Section 11.4. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The
Issuer agrees to pay to the Authenticating Agent for such series from time to
time reasonable compensation. The Authenticating Agent for the Securities of any
series shall have no responsibility or liability for any action taken by it as
such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any
Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
Section 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same.
(b) The ownership of Securities shall be proved by the Security
register or by a certificate of the Security registrar.
Section 7.3 Holders to be Treated as Owners. The Issuer, the Trustee
and any agent of the Issuer or the Trustee may deem and treat the Person in
whose name any Security shall be registered upon the Security register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
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thereon) for the purpose of receiving payment of or on account of the principal
of and, subject to the provisions of this Indenture, interest, if any, on such
Security and for all other purposes; and neither the Issuer nor the Trustee nor
any agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Affiliate of the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
securities which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel shall
be full protection in respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
Section 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three business days after such filing. Except as aforesaid any such action taken
by the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
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Section 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past default with
respect to the Securities of such series in accordance with Section 5.7 of the
Indenture, (ii) consent to any supplemental indenture in accordance with Section
8.2 of the Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such Persons, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be canceled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another Person to the Issuer or any
Subsidiary Guarantor, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the Issuer or
any Subsidiary Guarantor pursuant to Articles Nine or Thirteen;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities (and if such covenants, restrictions, conditions or provisions are to
be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series), and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other
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defaults) or may provide for an immediate enforcement upon such an Event of
Default or may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of appointment hereunder
by a successor trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.11; and
(g) to reflect the release of any Subsidiary Guarantor from its
Subsidiary Guarantee in accordance with the terms of Article Thirteen and the
applicable series of Securities, or the addition of any Restricted Subsidiary of
the Issuer as a Subsidiary Guarantor in the manner provided in Article Thirteen.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities then
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or
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eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Securities of such series; provided, that no such supplemental indenture shall
(a) extend the stated final maturity of the principal of any Security, or reduce
the principal amount thereof, or reduce the rate or extend the time of payment
of interest, if any, thereon (or, in the case of an Original Issue Discount
Security, reduce the rate of accrual of original issue discount thereon), or
reduce or alter the method of computation of any amount payable on redemption,
repayment or purchase by the Issuer thereof (or the time at which any such
redemption, repayment or purchase may be made), or make the principal thereof
(including any amount in respect of original issue discount), or interest, if
any, thereon payable in any coin or currency other than that provided in the
Securities or in accordance with the terms of the Securities, or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon an acceleration of the maturity thereof pursuant to Section 5.1
or the amount thereof provable in bankruptcy pursuant to Section 5.2, or impair
or affect the right of any Securityholder to institute suit for the payment
thereof or, if the Securities provide therefor, any right of repayment or
purchase at the option of the Securityholder, in each case without the consent
of the Holder of each Security so affected, or (b) reduce the aforesaid
percentage of Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the Holders
of each Security so affected. No consent of any Holder of any Security shall be
necessary under this Section 8.2 to permit the Trustee and the Issuer to execute
supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant,
Event of Default or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of Holders of Securities of such series, with
respect to such covenant or provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution
of the Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order)
certified by the secretary or an assistant secretary of the Issuer authorizing
the execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of the Holders of the Securities as aforesaid
and other documents, if any, required by Section 7.1, the Trustee shall join
with the Issuer in the execution of such supplemental indenture unless such
supplemental indenture affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
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Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, as provided in Section 11.4. Any failure of the
Issuer to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall be entitled to receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article Eight may bear a notation in form approved by the Trustee for such
series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE
OR OTHER DISPOSITION
Section 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to
the provisions of Section 9.2, nothing contained in this Indenture or in any of
the Securities shall prevent any consolidation or merger of the Issuer with or
into any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which the Issuer or its successor or
successors shall be a party or parties, or shall prevent any sale, lease,
exchange or other disposition of all or substantially all the property and
assets of the Issuer to any other Person (whether or not affiliated with the
Issuer) authorized to acquire and operate the same; provided, however, that any
such consolidation, merger, sale, lease, exchange or other disposition shall be
upon the conditions that (a) immediately after such consolidation, merger, sale,
lease, exchange or other disposition of all or substantially all of the property
and assets of the Issuer, the Person
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(whether the Issuer or such other Person) formed by or surviving any such
consolidation or merger, or to which such sale, lease, exchange or other
disposition shall have been made, shall not be in default in the performance or
observance of any of the terms, covenants and conditions of this Indenture to be
kept or performed by the Issuer; (b) the Person (if other than the Issuer)
formed by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, shall be organized
under the laws of the United States of America, any state thereof or the
District of Columbia; and (c) the due and punctual payment of the principal of
and interest, if any, on all the Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Issuer, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee executed
and delivered to the Trustee, by the Person (if other than the Issuer) formed by
such consolidation, or into which the Issuer shall have been merged, or by the
Person which shall have acquired or leased such property.
Section 9.2 Successor Corporation to be Substituted. In case of any
such consolidation or merger or any sale, conveyance or lease of all or
substantially all of the property of the Issuer and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and interest, if any, on all of the Securities and the due
and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Issuer, such successor Person shall succeed to
and be substituted for the Issuer, with the same effect as if it had been named
herein as the party of the first part, and the Issuer (including any intervening
successor to the Issuer which shall have become the obligor hereunder) shall be
relieved of any further obligation under this Indenture and the Securities;
provided, however, that in the case of a sale, lease, exchange or other
disposition of the property and assets of the Issuer (including any such
intervening successor), the Issuer (including any such intervening successor)
shall continue to be liable on its obligations under this Indenture and the
Securities to the extent, but only to the extent, of liability to pay the
principal of and interest, if any, on the Securities at the time, places and
rate prescribed in this Indenture and the Securities. Such successor Person
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Person instead of the Issuer and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities which such
successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease,
exchange or other disposition of all or substantially all of the property and
assets of the Issuer, such changes in phraseology and
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form (but not in substance) may be made in the Securities, thereafter to be
issued, as may be appropriate.
Section 9.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 6.1 and 6.2, may receive an Officers' Certificate and
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale, lease, exchange or other disposition and any such assumption complies with
the provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Issuer shall have paid or caused to
be paid the principal of and interest, if any, on all the Securities
Outstanding (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9)
as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all
Securities theretofore authenticated (other than Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9); and if, in any such case, the Issuer shall
also pay or cause to be paid all other sums payable hereunder by the
Issuer, then this Indenture shall cease to be of further effect, and
the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the satisfaction and discharge contemplated by
this provision have been complied with, and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to
reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred, and to compensate the Trustee for any services
thereafter reasonably and properly rendered, by the Trustee in
connection with this Indenture or the Securities.
(B) If at any time (a) the Issuer shall have paid or caused to
be paid the principal of, premium, if any, and interest, if any, on all
the Securities of any series Outstanding (other than Securities of such
series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9) as and when the same shall
have become due and payable, or (b) the Issuer shall have delivered to
the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9), or (c) in the case of any series of
Securities with respect to which the exact amount described in clause
(ii) below can be determined at the time of making the deposit referred
to in such clause (ii), (i) all the Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become
due and payable, or are by their terms to become due and payable within
one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption, and (ii) the
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Issuer shall have irrevocably deposited or caused to be deposited with
the Trustee as funds in trust, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of Securities of
such series, cash in an amount (other than moneys repaid by the Trustee
or any paying agent to the Issuer in accordance with Section 10.4) or
direct obligations of the United States of America, backed by its full
faith and credit ("U.S. Government Obligations"), maturing as to
principal and interest, if any, at such times and in such amounts as
will insure the availability of cash, or a combination thereof,
sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay (A) the principal of, premium,
if any, and interest, if any, on all Securities of such series on each
date that such principal of, premium, if any, or interest, if any, is
due and payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series; then the
Issuer shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (ii) above and the provisions of this
Indenture with respect to the Securities of such series (including any
Subsidiary Guarantee with respect to such series of Securities) shall
no longer be in effect (except, in the case of clause (c) of this
Section 10.1(B), as to (i) rights of registration of transfer and
exchange of Securities of such series, (ii) rights of substitution of
mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive
payments of principal thereof and premium, if any, and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of
such series to receive mandatory sinking fund payments thereon, if any,
when due, (iv) the rights, obligations, duties and immunities of the
Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them and (vi) the
obligations of the Issuer under Section 3.2 with respect to Securities
of such series) and the Trustee, on demand of the Issuer accompanied by
an Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent contemplated by this provision have been
complied with, and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging the same.
(C) The following provisions shall apply to the Securities of
each series unless specifically otherwise provided in a Board
Resolution, Officers' Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the
Indenture pursuant to the next preceding paragraph, in the case of any
series of Securities with respect to which the exact amount described
in subparagraph (a) below can be determined at the time of making the
deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the
Securities of such a series on the 91st day after the date of the
deposit referred to in subparagraph (a) below, and the provisions of
this Indenture with respect to the Securities of such series (including
any Subsidiary Guarantee with respect to such series of Securities)
shall no longer be in effect (except as to (i) rights of registration
of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen
Securities of such
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series, (iii) rights of Holders of Securities of such series to receive
payments of principal thereof, premium, if any, and interest, if any,
thereon upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders of Securities of
such series to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee
hereunder, (v) the rights of the Holders of Securities of such series
as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of
the Issuer under Section 3.2 with respect to Securities of such series)
and the Trustee, on demand of the Issuer accompanied by an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same, if
(a) with reference to this provision the Issuer
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit
of the Holders of Securities of such series (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to
principal and interest, if any, at such times and in such
amounts as will insure the availability of cash, or (iii) a
combination thereof, sufficient, in the opinion of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay (A) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each
date that such principal or interest, if any, is due and
payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance
with the terms of the Indenture and the Securities of such
series;
(b) such deposit will not result in a breach or
violation of, or constitute a default under, any agreement or
instrument to which the Issuer is a party or by which it is
bound; and
(c) the Issuer has delivered to the Trustee an
Opinion of Counsel based on the fact that (x) the Issuer has
received from, or there has been published by, the Internal
Revenue Service a ruling or (y), since the date hereof, there
has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such
opinion shall confirm that, the Holders of the Securities of
such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income
tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance
and discharge had not occurred.
Section 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying
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agent (including the Issuer acting as its own paying agent), to the Holders of
the particular Securities of such series for the payment or redemption of which
such moneys and U.S. Government Obligations have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any, but such moneys and U.S. Government Obligations need not be segregated
from other funds except to the extent required by law.
Section 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
Section 10.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any
paying agent for the payment of the principal of or interest, if any, on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest, if any, shall have become
due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Securities of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for any
payment which such Holder may be entitled to collect, and all liability of the
Trustee or any paying agent with respect to such moneys shall thereupon cease.
Section 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
Section 11.1 Partners, Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Issuer or any Subsidiary Guarantor, or any
partner of the Issuer or any Subsidiary Guarantor or of any successor, either
directly or through the Issuer or any Subsidiary Guarantor or any successor,
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
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Section 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Holders of Securities. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any
covenant or provision herein contained, all such covenants and provisions being
for the sole benefit of the parties hereto and their successors and of the
Holders of the Securities.
Section 11.3 Successors and Assigns of Issuer Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Issuer or, except as provided in Section 13.4, any
Subsidiary Guarantor, shall bind their respective successors and assigns,
whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer or any Subsidiary Guarantor, or as required
pursuant to the Trust Indenture Act of 1939, may be given via facsimile or
served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address of the Issuer is
filed by the Issuer with the Trustee) to Ocean Energy, Inc., 1001 Fannin, Suite
1600, Houston, Texas 77002, Attention: Chairman of the Board. Any notice,
direction, request or demand by the Issuer or any Holder of Securities to or
upon the Trustee shall be deemed to have been sufficiently given via facsimile
or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the
Trustee is filed by the Trustee with the Issuer) to The Bank of New York, 101
Barclay Street, Floor 21 West, New York, New York 10286, Attention: Corporate
Trust Administration.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. 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, it shall be impracticable to mail notice to the Issuer 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 reasonably satisfactory to the
Trustee shall be deemed to be sufficient notice.
Section 11.5 Officers' Certificates and Opinions of Counsel; Statements
to Be Contained Therein. Upon any application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions
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precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than
a certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of principal of or interest, if any, on the Securities of any
series or the date fixed for redemption, purchase or repayment of any such
Security shall not be a Business Day, then payment of interest, if any, or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date
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fixed for redemption, purchase or repayment, and, in the case of payment, no
interest shall accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this Indenture
limits, qualifies or conflicts with another provision included in this Indenture
which is required to be included herein by any of Sections 310 to 317,
inclusive, or is deemed applicable to this Indenture by virtue of the
provisions, of the Trust Indenture Act of 1939, such required provision shall
control.
Section 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE.
Section 11.9 Counterparts. This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified, as contemplated by Section 2.3 for
Securities of such series.
Section 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, the CUSIP number relating to such Securities, that payment
will be made upon presentation and surrender of such Securities, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest, if any,
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(or, in the case of Original Issue Discount Securities, original issue discount)
accrued to the date fixed for redemption will be paid as specified in such
notice and that on and after said date interest, if any, (or, in the case of
Original Issue Discount Securities, original issue discount) thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a
series is to be redeemed in part only, the notice of redemption shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Issuer shall be given by the Issuer or, at the Issuer's
request, by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed. Securities may be redeemed in part in
multiples equal to the minimum authorized denomination for Securities of such
series or any multiple thereof. The Trustee shall promptly notify the Issuer in
writing of the Securities of such series selected for redemption and, in the
case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities of any series 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 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with interest, if any, accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest, if any, accrued to
said date) interest (or, in the case of Original Issue Discount Securities,
original issue discount) on the Securities or portions of Securities
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so called for redemption shall cease to accrue, and such Securities shall cease
from and after the date fixed for redemption (unless an earlier date shall be
specified in a Board Resolution, Officers' Certificate or executed supplemental
indenture referred to in Sections 2.1 and 2.3 by or pursuant to which the form
and terms of the Securities of such series were established) except as provided
in Sections 6.5 and 10.4, to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest, if any, accrued thereon to
the date fixed for redemption; provided that payment of interest, if any,
becoming due on or prior to the date fixed for redemption shall be payable to
the Holders of Securities registered as such on the relevant record date subject
to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the redemption price shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series, and of like tenor, of authorized denominations, in
principal amount equal to the unredeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate delivered to the Trustee at least 45 days
prior to the last date on which notice of redemption may be given as being owned
of record and beneficially by, and not pledged or hypothecated by either (a) the
Issuer, or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and
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delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive
credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section 12.5, or (c) receive credit for Securities of such
series (not previously so credited) redeemed by the Issuer through any optional
redemption provision contained in the terms of such series. Securities so
delivered or credited shall be received or credited by the Trustee at the
sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of Securities of
such series and the basis for such credit, (b) stating that none of the
Securities of such series to be so credited has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured
or otherwise ceased to exist) and are continuing, and (d) stating whether or not
the Issuer intends to exercise its right to make an optional sinking fund
payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the
next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to
be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the Trustee with such Officers' Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officers' Certificate shall be
irrevocable and upon its receipt by the Trustee the Issuer shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Issuer, on or before any such 60th day, to deliver such Officers'
Certificate and Securities (subject to the parenthetical clause in the second
preceding sentence) specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due on
the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof, and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both)
to be made in cash on the next succeeding sinking fund payment date plus any
unused balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
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thereof) so selected. The Trustee, in the name and at the expense of the Issuer
(or the Issuer, if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.7 or the default cured on or before the 60th day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
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ARTICLE THIRTEEN
GUARANTEES
Section 13.1 Subsidiary Guarantees. The Issuer may designate any
Restricted Subsidiary to be a Subsidiary Guarantor with respect to any series of
Securities and may be required to cause a Restricted Subsidiary to become a
Subsidiary Guarantor with respect to any series of Securities in the
circumstances specified in Section 3.8. Subject to Section 13.5 hereof, any
Restricted Subsidiary that is or becomes a Subsidiary Guarantor shall, jointly
and severally, unconditionally guarantee to each Holder of a Security of the
relevant series authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns that:
(a) the principal of, premium, if any, and interest on such Securities
will be promptly paid in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or otherwise, and interest on
the overdue principal, premium, if any (to the extent permitted by law), and
interest on any interest, if any, on such Securities, and all other payment
obligations of the Issuer to the Holders or the Trustee hereunder or thereunder
will be promptly paid in full and 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 such
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, subject to any applicable grace period, whether at stated maturity, by
acceleration, redemption or otherwise.
Failing payment when so 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. An Event of Default
under this Indenture or the Securities shall constitute an event of default
under the Subsidiary Guarantees, and shall entitle the Holders to accelerate the
obligations of the Subsidiary Guarantors hereunder in the same manner and to the
same extent as the obligations of the Issuer. The Subsidiary Guarantors shall
agree that their obligations hereunder shall be unconditional, irrespective of
the validity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Issuer, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
Subsidiary Guarantor. Each Subsidiary Guarantor shall waive diligence,
presentment, demand of payment, notice of acceleration, notice of intent to
accelerate, filing of claims with a court in the event of insolvency or
bankruptcy of the Issuer, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and shall covenant that its
Subsidiary Guarantee will not be discharged except by complete performance of
the obligations contained in the relevant Securities and this Indenture. If any
Holder or the Trustee is required by any court or otherwise to return to the
Issuer, the Subsidiary Guarantors, or any Trustee, liquidator or other similar
official acting in relation to either the Issuer or the Subsidiary Guarantors,
any amount paid by the Issuer or any Subsidiary Guarantor to the Trustee or such
Holder, the Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Subsidiary
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Guarantor shall agree that it shall not be entitled to, and shall waive, any
right to exercise any right of subrogation in relation to the Holders in respect
of any obligations guaranteed by the Subsidiary Guarantee, except as provided
under Section 13.5 hereof. Each Subsidiary Guarantor shall further agree that,
as between the Subsidiary Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed by
the Subsidiary Guarantee may be accelerated as provided in Article 5 hereof for
the purposes of its Subsidiary Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed thereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 5 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by each Subsidiary
Guarantor for the purpose of its Subsidiary Guarantee. The Subsidiary Guarantors
shall have the right to seek contribution from any non-paying Subsidiary
Guarantor pursuant to Section 13.5 after the relevant Securities and the
obligations hereunder shall have been paid in full to the Holders under the
Subsidiary Guarantees.
Section 13.2 Execution and Delivery of Subsidiary Guarantee. To
evidence its Subsidiary Guarantee set forth in Section 13.1 hereof, each
Subsidiary Guarantor shall execute and deliver this Indenture or a supplemental
indenture in the form satisfactory to the Issuer and the Trustee, which
supplemental indenture shall be executed on behalf of such Subsidiary Guarantor,
by manual or facsimile signature, by an officer of such Subsidiary Guarantor.
Each Subsidiary Guarantor shall agree 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.
Section 13.3 Subsidiary Guarantors May Consolidate, Etc., on Certain
Terms. Subject to Section 13.4 hereof, no Subsidiary Guarantor may consolidate
or merge with or into (whether or not such Subsidiary Guarantor is the surviving
Person) another Person unless (i) the Person formed by or surviving any such
consolidation or merger (if other than such Subsidiary Guarantor) assumes all
the obligations of such Subsidiary Guarantor pursuant to a supplemental
indenture, in a form reasonably satisfactory to the Trustee, under the relevant
Securities and this Indenture, and (ii) immediately after such transaction, no
Default or Event of Default exists. In the case of any such consolidation or
merger and upon the assumption by the successor Person, by supplemental
indenture, executed and delivered to the Trustee, of the Subsidiary Guarantee,
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 a Subsidiary
Guarantor. The foregoing will not prohibit a merger or consolidation between
Subsidiary Guarantors or a merger or consolidation between the Issuer and a
Subsidiary Guarantor.
Section 13.4 Releases of Subsidiary Guarantees. In the event of a sale
or other disposition of all or substantially all of the assets of any Subsidiary
Guarantor, or a sale or other disposition of all of the capital stock or other
ownership interests of any Subsidiary Guarantor, in each case by way of merger,
consolidation or otherwise, then such Subsidiary (in the event of such a sale or
other disposition of all the capital stock or other ownership interests of such
Subsidiary
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Guarantor) or such Subsidiary Guarantor and the entity acquiring the property
(in the event of such a sale or other disposition of all or substantially all of
the assets of such Subsidiary Guarantor ) will be released and relieved of any
obligations under its Subsidiary Guarantee. If, at any time while any of the
Securities remain outstanding, none of the Issuer's then outstanding
indebtedness (other than Securities) is guaranteed by a Subsidiary Guarantor,
such Subsidiary Guarantor shall be automatically and unconditionally released,
discharged and relieved of any obligations under its Subsidiary Guarantee (which
shall be terminated and cease to have any force and effect). In addition, any
Subsidiary Guarantee may contain such other release provisions as may be set
forth in the supplemental indenture evidencing the assumption by such Subsidiary
Guarantor of the Subsidiary Guarantee obligations under this Indenture or
otherwise in the terms of the Securities established pursuant to Section 2.3.
Section 13.5 Limitation on Subsidiary Guarantor Liability;
Contribution. Each Subsidiary Guarantor, and by its acceptance hereof each
Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guarantee by such Subsidiary Guarantor pursuant to its Subsidiary
Guarantee not constitute a fraudulent transfer or fraudulent conveyance for
purposes of any federal, state or foreign law. To effectuate the foregoing
intention, the Holders and each Subsidiary Guarantor hereby irrevocably agree
that the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities (including, but not limited to, Guarantor
Senior indebtedness) of such Subsidiary Guarantor and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Subsidiary Guarantee or pursuant to this Section 13.5, result in the
obligations of such Subsidiary Guarantor under its Subsidiary Guarantee not
constituting a fraudulent conveyance or fraudulent transfer under federal, state
or foreign law. This Section 13.5 is for the benefit of the creditors of each
Subsidiary Guarantor.
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 Issuer's
obligations with respect to the Securities or any other Subsidiary Guarantor's
obligations with respect to its Subsidiary Guarantee.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, effective as of September 28, 2001.
OCEAN ENERGY, INC.,
a Delaware corporation
By: /s/ Stephen A. Thorington
-----------------------------------------
Name: Stephen A. Thorington
Title: Senior Vice President-Finance and
Corporate Development
OCEAN ENERGY, INC.,
a Louisiana corporation as
Subsidiary Guarantor unless
specified in the terms of any
series of Securities issued hereunder
By /s/ Stephen A. Thorington
-----------------------------------------
Name: Stephen A. Thorington
Title: Senior Vice President-Finance and
Corporate Development
THE BANK OF NEW YORK,
as Trustee
By: /s/ Cassandra Shedd
-----------------------------------------
Name: Cassandra Shedd
Title: Assistant Vice President
-73-
EX-4.2
5
h90988ex4-2.txt
OFFICER'S CERTIFICATE - 7 1/4 SENIOR NOTES
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EXHIBIT 4.2
OCEAN ENERGY, INC.
OFFICERS' CERTIFICATE
---------------
ESTABLISHING
7 1/4% SENIOR NOTES DUE 2011
Pursuant to the authority delegated to the undersigned by the Executive
Committee of the Board of Directors of Ocean Energy, Inc. (the "Company") by
resolution dated September 25, 2001, the undersigned officers of the Company
hereby adopt this Officers' Certificate for the purpose of establishing a series
of Securities under the Senior Indenture dated as of September 28, 2001 (the
"Indenture) among the Company, Ocean Energy, Inc. (a Louisiana corporation), as
guarantor (the "Guarantor"), and The Bank of New York, as trustee (the
"Trustee"), to be designated the Company's 7 1/4% Senior Notes due 2011 (the
"Senior Notes"). This Officers' Certificate is executed pursuant to Section 2.3
of the Indenture.
In addition to the terms provided in the Indenture with respect to
Securities of a series issued thereunder, the terms of the Senior Notes shall be
as follows (with all capitalized terms used below having the respective meanings
ascribed thereto in the Indenture):
(1) Principal Amount. The aggregate principal amount of the Senior
Notes that may be authenticated and delivered under the Indenture shall
initially be limited to $350,000,000 (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 2.8, 2.9,
2.11, 8.5 or 12.3 of the Indenture), provided, however, that the Company
may, without the consent of the holders of the Senior Notes issue
additional notes under the Indenture, having the same ranking and the same
interest, maturities and other terms as the Senior Notes. Any such
additional notes may, together with the Senior Notes, constitute a single
series under the Indenture and have the same CUSIP number as the Senior
Notes.
(2) Stated Maturity. The principal of the Senior Notes shall be
payable in full on October 1, 2011, unless earlier redeemed in accordance
herewith.
(3) Interest. The unpaid principal of the Senior Notes shall bear
interest at the rate of 7 1/4% per annum from September 28, 2001 or from
the most recent interest payment date to which interest has been paid or
duly provided for, which interest shall be calculated on the basis of a
360-day year comprised of twelve 30-day months.
(4) Interest Payment Dates. The interest payment dates with respect
to the Senior Notes shall be April 1 and October 1 in each year,
commencing April 1, 2002, and the regular record dates for interest
payable on any such interest payment date shall be March 15 or September
15 (whether or not a Business Day), as the case may be, next preceding
such interest payment date.
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(5) Office of Payment. Principal of (and premium, if any) and
interest on the Senior Notes shall be payable at the Corporate Trust
Office of the Trustee in New York, New York, and the Senior Notes may be
surrendered for registration of transfer or exchange at such Corporate
Trust Office, and notices and demands to or upon the Company in respect of
the Senior Notes and the Indenture may be served at such Corporate Trust
Office.
(6) Paying Agent, etc. The Trustee shall initially act as paying
agent, authenticating agent, transfer agent and security registrar with
respect to the Senior Notes.
(7) Guarantee. The Guarantor will guarantee the Company's payment
obligations on the Senior Notes subject to and in accordance with Article
XIII of the Indenture. The provisions of Section 3.8 of the Indenture
shall be applicable to the Senior Notes.
(8) Redemption. The Senior Notes shall be redeemable in whole or in
part, at the Company's option, at any time or from time to time, at a
redemption price equal to the greater of (1) 100% of the principal amount
of such Senior Notes to be redeemed or (2) the sum of the present values
of the Remaining Scheduled Payments (as hereinafter defined) on such
Senior Notes, discounted to the date fixed for redemption in accordance
with Article XII of the Indenture (the "Redemption Date") on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate (as hereinafter defined) plus 50 basis points, plus accrued
interest on the principal amount being redeemed to the Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of the Senior Notes to be redeemed that
would be used, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of such Senior Notes.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (1) the arithmetic average of the bid and ask prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) on the third Business Day before such Redemption Date,
as published in the daily statistical release (or any successor release)
by the Federal Reserve Bank of New York and designated "Composite 3:30
p.m. Quotations for U.S. Government Securities" or (2) if such release (or
any successor release) is not available or does not contain such prices on
such Business Day,
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the arithmetic average of the Reference Treasury Dealer Quotations for
such Redemption Date.
"Reference Treasury Dealer" means Credit Suisse First Boston
Corporation, J. P. Morgan Securities Inc. and Banc of America
Securities LLC and their respective successors; provided, however, that
if any such entity ceases to be a primary U. S. Government securities
dealer in New York City (a "Primary Treasury Dealer"), the Company
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the arithmetic average,
as determined by the Trustee, of the bid and ask prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer
by 5:00 p.m. on the third Business Day before such Redemption Date.
"Remaining Scheduled Payments" means the remaining scheduled
payments of the principal of the Senior Notes to be redeemed and interest
thereon that would be due after the related Redemption Date but for such
redemption; provided, however, that, if such Redemption Date is not an
interest payment date, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest accrued
thereon to such Redemption Date.
(9) Change of Control Offer. (i) Upon the occurrence of a Change of
Control Triggering Event, the Company shall be obligated to make an offer
to purchase all of the then outstanding Senior Notes (a "Change of Control
Offer"), and shall purchase, on a Business Day (the "Change of Control
Purchase Date") not more than 70 nor less than 30 days following the date
of the Change of Control Triggering Event, all of the then outstanding
Senior Notes validly tendered pursuant to such Change of Control Offer, at
a purchase price (the "Change of Control Purchase Price") equal to 101% of
the principal amount thereof plus accrued and unpaid interest, if any, to
the Change of Control Purchase Date. The Change of Control Offer is
required to remain open for at least 20 Business Days and until the close
of business on the Change of Control Purchase Date.
(ii) Not later than the 30th day following the date of the
Change of Control Triggering Event, the Company shall give to the
Trustee and each Holder of the Senior Notes, in the manner provided
in Section 11.4 of the Indenture, a notice (the "Change of Control
Notice") stating:
(A) that a Change of Control Triggering Event has
occurred and that such Holder has the right to require the
Company to repurchase such Holder's Senior Notes, or portion
thereof equal to an integral multiple of $1,000, at the Change
of Control Purchase Price;
(B) any information regarding such Change of Control
Triggering Event required to be furnished pursuant to Rule
14e-1 under
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the Securities Exchange Act of 1934 (the "Exchange Act") and
any other securities laws and regulations thereunder;
(C) the Change of Control Purchase Date, which shall be
on a Business Day and no earlier than 30 days nor later than
70 days after the date of the Change of Control Triggering
Event;
(D) that any Senior Note, or portion thereof, not
tendered or accepted for payment will continue to accrue
interest;
(E) that unless the Company defaults in depositing money
with the paying agent in accordance with paragraph (v) of this
Section (9), or payment is otherwise prevented, any Senior
Note, or portion thereof, accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after
the Change of Control Purchase Date; and
(F) the instructions a Holder must follow in order to
have its Senior Notes repurchased in accordance with paragraph
(iv) of this Section (9).
(iii) The Company will not be required to make a Change of
Control Offer upon a Change of Control Triggering Event 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 Senior Notes validly tendered and not
withdrawn under such Change of Control Offer.
(iv) Holders electing to have Senior Notes purchased will be
required to surrender such Senior Notes to the Company at the
address specified in the Change of Control Notice at least five
Business Days prior to the Change of Control Purchase Date.
Repurchases of Senior Notes in part may be elected only for portions
of Senior Notes having a principal amount of $1,000 or an integral
multiple thereof. Holders will be entitled to withdraw their
election if the Company receives, not later than three Business Days
prior to the Change of Control Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of the
Holder, the certificate number(s) and principal amount of the Senior
Notes delivered for purchase by the Holder as to which his election
is to be withdrawn and a statement that such Holder is withdrawing
his election to have such Senior Notes purchased. Holders whose
Senior Notes are purchased only in part will be issued new Senior
Notes equal in principal amount to the unpurchased portion of the
Senior Notes surrendered.
(v) On the Change of Control Purchase Date, the Company shall
(A) accept for payment Senior Notes or portions thereof tendered
pursuant to a Change of Control Offer, (B) deposit with the paying
agent money sufficient to pay the purchase price of all Senior Notes
or portions thereof so tendered, and (C) deliver or cause to be
delivered to the Trustee the Senior Notes so accepted. The
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paying agent shall promptly mail or deliver to Holders of the Senior
Notes so tendered payment in an amount equal to the purchase price
for the Senior Notes, and the Company will promptly execute and the
Trustee will promptly authenticate and mail or make available for
delivery to such Holders a new Senior Note equal in principal amount
to any unpurchased portion of the Senior Note which any such Holder
did not surrender for purchase. The Company shall announce the
results of a Change of Control Offer on or as soon as practicable
after the Change of Control Purchase Date.
(vi) 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 Triggering Event occurs and
the Company is required to purchase Senior Notes as described above.
(vii) For all purposes of this Section (9), the following
terms shall have the respective meanings specified below (except as
otherwise expressly provided or unless the context otherwise clearly
requires):
"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 Company's total Voting Stock; (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 (x) the Company's
stockholders immediately prior to such merger or consolidation, or (y) if
a record date has been set to determine the stockholders of the Company
entitled to vote with respect to such merger or consolidation, the
stockholders of the Company as of such record date 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) during any
consecutive two-year period, individuals who at the beginning of such
period constituted the Company's board of directors (together with any new
directors whose election by such board of directors or whose nomination
for election by the Company's stockholders was approved by a vote of a
majority of the directors then still in office who were either directors
at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Company's board of directors then in office; or (d) the
liquidation or dissolution of the Company.
"Change of Control Triggering Event" means the first occurrence of
both a Change of Control and a related Rating Decline.
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"Investment Grade" means (i) with respect to Moody's, a rating of at
least "Baa3" (or equivalent successor category); (ii) with respect to S&P,
a rating of at least "BBB-" (or equivalent successor category); and (iii)
with respect to another Rating Agency, a rating that is at least the
equivalent of the category specified in clause (i) or (ii), as applicable,
for the Rating Agency for which such Rating Agency has been substituted.
"Moody's" means Moody's Investors Service, Inc. or any successor
to the rating agency business thereof.
"Rating Agency" means each of S&P and Moody's, or if S&P or Moody's
or both shall not make a rating on the Senior Notes publicly available, a
nationally recognized statistical rating agency or agencies, as the case
may be, selected by the Company (as certified by a resolution of the Board
of Directors of the Company), which shall be substituted for S&P or
Moody's, or both, as the case may be.
"Rating Decline" means with respect to each of the two Rating
Agencies there has been either (i) a reduction in the rating of the Senior
Notes by such Rating Agency to a rating that is not Investment Grade or
(ii) a withdrawal of the rating of the Senior Notes by such Rating Agency;
provided, however, that any such reduction or withdrawal by a Rating
Agency (x) occurs not later than the date 30 days following the date of
public notice of the occurrence of a Change of Control and (y) is due to
such Change of Control.
"S&P" means Standard & Poor's Ratings Group, Inc., or any
successor to the rating agency business thereof.
"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).
(10) No Sinking Fund. The Senior Notes shall not be subject to a
sinking fund requirement.
(11) Denominations. The Senior Notes shall be issuable in
denominations of $1,000 and integral multiples thereof.
(12) Defeasance. The Senior Notes shall be subject to defeasance as
provided in Section 10.1(C) of the Indenture.
(13) Depositary. The Senior Notes shall be issued initially wholly
in the form of Global Securities, and The Depository Trust Company shall
be the initial Depositary with respect thereto.
(14) Form of Note. The Senior Notes shall be in substantially the
form attached hereto as Exhibit A, which is incorporated herein by
reference.
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IN WITNESS WHEREOF, the undersigned have duly executed this Officers'
Certificate as of the 28th day of September, 2001.
OCEAN ENERGY, INC.
By: /s/ Robert K. Reeves
-------------------------------------
Name: Robert K. Reeves
Title: Executive Vice President, General
Counsel and Secretary
By: /s/ Stephen A. Thorington
-------------------------------------
Name: Stephen A. Thorington
Title: Senior Vice President - Finance
and Corporate Development
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EXHIBIT A
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. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.
OCEAN ENERGY, INC.
7 1/4% Senior Notes due 2011
NO. ___ CUSIP NO. 67481EAA4
OCEAN ENERGY, INC., a corporation duly organized and existing under the
laws of the State of Delaware (herein called the "Company," which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ________________________ on October 1, 2011, and to pay
interest thereon from September 28, 2001 or from the most recent interest
payment date to which interest has been paid or duly provided for, semiannually
in arrears on April 1 and October 1 in each year, commencing April 1, 2002, at
the rate of 7 1/4% per annum, until the principal hereof is fully paid or made
available for full payment. The interest so payable, and punctually paid or duly
provided for, on any interest payment date will, as provided in such Indenture,
be paid to the Person in whose name this Note is registered at the close of
business on the March 15 or September 15 (whether or not a Business Day), as the
case may be, next preceding such interest payment date (a "Regular Record
Date"). Notwithstanding the foregoing, if and to the extent the Company shall
default in the payment of the interest due on such interest payment date, any
such interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and such defaulted
interest shall instead be paid to the Person
9
in whose name this Note is registered (a) at the close of business on a
subsequent record date (which shall be not less than five Business Days prior to
the date of payment of such defaulted interest) established by notice given by
mail by or on behalf of the Company to the Holders of Notes not less than 15
days preceding such subsequent record date or (b) as determined by such other
procedure as is mutually acceptable to the Company and the Trustee, all as more
fully described in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Note shall be made at the Corporate Trust Office of the Trustee in New York, New
York, or at such other office or agency of the Company as it may designate for
such purpose pursuant to the Indenture hereinafter referred to, in such
immediately available funds of the United States of America as at the time of
payment are legal tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth in this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to below by manual signature of an authorized officer, this
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
Dated: _____________, _____
OCEAN ENERGY, INC.
By:
-------------------------------------
Stephen A. Thorington
Senior Vice President - Finance
and Corporate Development
ATTEST:
--------------------------------------
Robert K. Reeves
Secretary
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------------------
Authorized Officer
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FORM OF REVERSE OF SECURITY
This Note is one of a duly authorized issue of Securities of the
Company (such issue being herein called the "Notes"), issued and to be issued in
one or more series under the Senior Indenture, dated as of September 28, 2001
(herein, together with the Officer's Certificate establishing the terms of the
Notes, called the "Indenture"), among the Company, Ocean Energy, Inc. (a
Louisiana corporation), as guarantor (herein called the "Guarantor") and The
Bank of New York, as Trustee (herein called the "Trustee," which term includes
any additional successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitation of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are, and are to be, authenticated and delivered.
Capitalized terms used but not defined herein are defined in the Indenture and
used herein with the same meanings ascribed to them therein. This Note is a
Global Security representing the entire principal amount of the series
designated on the face hereof, limited in aggregate principal amount to
$350,000,000 except as set forth in the Indenture.
The Guarantor will guarantee the Company's obligations on the Notes
subject to and in accordance with the terms of the Indenture.
As further described in the Indenture, the Notes shall be redeemable in
whole or in part, at the Company's option at any time, at a redemption price
equal to the greater of (1) 100% of the principal amount of such Notes to be
redeemed or (2) the sum of the present values of the Remaining Scheduled
Payments on such Notes, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 50 basis points, plus accrued interest on the principal amount being
redeemed to the redemption date.
As further described in the Indenture, upon the occurrence of a Change
of Control Triggering Event, the Company shall be obligated to make an offer to
purchase all of the then outstanding Notes (a "Change of Control Offer"), and
shall purchase, on a Business Day (the "Change of Control Purchase Date") not
more than 70 nor less than 30 days following the Change of Control Triggering
Event, all of the then outstanding Notes validly tendered pursuant to such
Change of Control Offer, at a purchase price (the "Change of Control Purchase
Price") equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Change of Control Purchase Date.
The Notes shall not be subject to a sinking fund requirement.
The Indenture contains provisions for defeasance of the entire
indebtedness of the Notes upon compliance by the Company with certain conditions
set forth therein.
If an Event of Default with respect to the Notes shall occur and be
continuing, the unpaid principal of the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
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The Indenture contains provisions permitting the Company and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes then Outstanding under the Indenture and affected
thereby, evidenced as provided in the Indenture, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Notes. It is also provided in the
Indenture that the Holders of a majority in aggregate principal amount of the
Notes then Outstanding may on behalf of the Holders of all of the Notes waive
any past default or Event of Default under the Indenture and its consequences
except a default in the payment of the principal of or interest on any of the
Notes . Any such consent or waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, and at the rates and in the coin or currency
herein provided.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Note shall have any right to institute any proceeding with respect
to the Indenture or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of default and the continuance
thereof, as provided in the Indenture, and unless the Holders of not less than
25% in principal amount of the Notes then Outstanding shall have made written
request, and offered reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall have failed to institute such
proceeding within 60 days; provided, however, that such limitations shall not
without the consent of such Holder impair the right of a Holder hereof to
institute suit for the enforcement of payment of the principal of or interest on
this Note on or after the respective due dates expressed herein.
This Note shall be exchangeable for Notes registered in the names of
Persons other than the Depositary with respect to such series or its nominee
only as provided in this paragraph. This Note shall be so exchangeable if (i)
such Depositary notifies the Company that it is unwilling, unable or ineligible
to continue as Depositary for this Note and a successor Depositary is not
appointed by the Company within 90 days or (ii) the Company executes and
delivers to the Trustee a written order providing that this Note shall be so
exchangeable. Notes so issued in exchange for this Note shall be of the same
series and of like tenor, in authorized denominations and in the aggregate
having the same unpaid principal amount as this Note and registered in such
names as such Depositary shall direct. Individual Notes so issued will be issued
in registered form and denominations, unless otherwise specified by the Company,
of $1,000 and integral multiples thereof.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the security register
maintained for that purpose, upon surrender of this Note for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder hereof or its attorney
duly authorized in writing, and thereupon on or more new Notes of this series,
and of like tenor, of authorized denominations and for the same aggregate unpaid
principal amount, shall be issued to the designated transferee or transferees.
At the date of the original issuance of this Note, such office or agency of the
Company is maintained by the Trustee at its Corporate Trust Office, 101 Barclay
Street, Floor 21 West, New York, New York.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary. All
payments made to or upon the order of such registered Holder shall, to the
extent of the sum or sums so paid, satisfy and discharge the liability for
moneys payable on this Note.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a CUSIP number to be
printed on this Note as a convenience to the Holder hereof. No representation is
made as to the accuracy of such number and reliance may be placed only on the
other identifying information printed hereon.
Interest on this Note shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
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ASSIGNMENT FORM
I or we assign and transfer this Note to
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code of assignee or transferee)
________________________________________________________________________________
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_________________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: ____________________________ Signed: ____________________________________
(Sign exactly as name appears above
or on the other side of this Note)
Signature Guarantee: ______________________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
4
EX-99.1
6
h90988ex99-1.txt
OPINION OF VINSON & ELKINS L.L.P.
1
EXHIBIT 99.1
[VINSON & ELKINS LETTERHEAD]
September 28, 2001
Ocean Energy, Inc.
1001 Fannin, Suite 1600
Houston, Texas 77002
Ladies and Gentlemen:
We have acted as counsel for Ocean Energy Inc., a Delaware corporation
(the "Company") and Ocean Energy, Inc., a Louisiana corporation (the
"Guarantor") in connection with the sale by the Company pursuant to an
Underwriting Agreement, dated September 25, 2001, among the Company, the
Guarantor and the underwriters named therein, of $350,000,000 aggregate
principal amount of the Company's 7 1/4% Senior Notes due 2011 (the "Notes"),
which will be guaranteed ("Guarantee") by the Guarantor and issued pursuant to a
Senior Indenture, to be dated as of September 28, 2001 (the "Indenture"),
between the Company, the Guarantor and The Bank of New York, as Trustee (the
"Trustee"). The Notes have been registered under the Company's Registration
Statement on Form S-3 (File No. 333-67136).
In reaching the opinions set forth in this letter, we have reviewed
originals or copies of:
A. the form of Indenture;
B. a form of the officers' certificate establishing the terms of
the Notes, including the form of global security representing
the Notes;
C. corporate proceedings of the Company and the Guarantor
relating to the authorization of the Indenture, and the
authorization and issuance of the Notes and other matters, all
as set forth in the minute books or other records of the
Company and the Guarantor, as applicable; and
D. such other agreements, certificates of public officials,
certificates of the Company and the Guarantor, certificates of
other persons, records, documents, and matters of law as we
deemed relevant.
2
Ocean Energy, Inc.
Page 2
September 28, 2001
As to any facts material to our opinion, we have made no independent
investigation of such facts and have relied, to the extent that we deem such
reliance proper, upon certificates of public officials and officers or other
representatives of the Company.
In rendering the opinions set forth below, we have assumed that (i) all
information contained in all documents reviewed by us is true and correct; (ii)
all signatures on all documents examined by us are genuine; (iii) all documents
submitted to us as originals are authentic and all documents submitted to us as
copies conform to the originals of those documents; (iv) each natural person
signing any document reviewed by us had the legal capacity to do so; (v) each
person signing in a representative capacity (other than on behalf of the
Company) any document reviewed by us had authority to sign in such capacity; and
(vi) the Indenture, the officers' certificate establishing the terms of the
Notes and the global security representing the Notes will be duly authorized,
executed and delivered by the parties thereto in substantially the form reviewed
by us.
Based on the foregoing, we are of the opinion that:
1. When the Indenture has been duly executed and delivered by all of the
parties thereto, the officers' certificate establishing the terms of the Notes
has been duly executed, and the Notes and the related Guarantee, have been duly
executed, authenticated, issued and delivered in accordance with the provisions
of the Indenture, the Notes and the related Guarantee will be legally issued and
will constitute valid and binding obligations of the Company and the Guarantor,
respectively, enforceable against the Company and the Guarantor, respectively,
in accordance with their terms and will be entitled to the benefits of the
Indenture and the Guarantee contained therein, except to the extent that the
enforceability of any document, instrument or the Notes or Guarantee may be
limited by or subject to bankruptcy, insolvency, fraudulent transfer or
conveyance, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally, and general equitable or public policy
principles.
The foregoing opinions are limited in all respects to the Delaware General
Corporation Law (including the applicable provisions of the Delaware
Constitution and the reported judicial decisions interpreting these laws), the
Business Corporation Law of the State of Louisiana and the laws of New York and
the federal law of the United States of America, and we do not express any
opinions as to the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. By giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission issued thereunder.
Very truly yours,
Vinson & Elkins L.L.P.