As filed with the Securities and
Exchange Commission on May 21, 2008
Registration
No. 333-142346
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
Post-Effective Amendment
No. 1 to
Form S-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
CARRIZO OIL & GAS,
INC.
(Exact Name of Registrant as
Specified in Its Charter)
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Texas
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76-0415919
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(State or Other Jurisdiction
of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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1000 Louisiana,
Suite 1500
Houston, Texas 77002
(713) 328-1000
(Address, including zip code,
and telephone number,
including area code, of registrants principal executive
offices)
Gerald A. Morton
General Counsel and
Vice President Business Development
Carrizo Oil & Gas, Inc.
1000 Louisiana, Suite 1500
Houston, Texas 77002
(713) 328-1000
(Name, address, including zip
code, and telephone number,
including area code, of agent for service)
Copy to:
Gene J. Oshman
James H. Mayor
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002
(713) 229-1234
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Jurisdiction of
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I.R.S. Employer
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Exact Name of Additional Registrants
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Incorporation/Organization
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Identification Number
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CCBM, Inc.
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Delaware
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76-0685601
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CLLR, Inc.
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Delaware
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20-5154104
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Hondo Pipeline, Inc.
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Delaware
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26-1309563
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Approximate date of commencement of proposed sale to the
public
: From time to time after this registration
statement becomes effective.
If the only securities being registered on this Form are to be
offered pursuant to dividend or interest reinvestment plans,
please check the following
box.
o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box.
þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering.
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If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
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If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box.
þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller reporting
company
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(Do not check if a smaller
reporting company)
CALCULATION
OF REGISTRATION FEE
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Title of Each Class of
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Amount to be Registered/Proposed Maximum Aggregate
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Securities to be Registered
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Offering Price/Amount of Registration Fee(1)(2)
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Debt Securities
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Common Stock, par value $0.01 per share
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Preferred Stock, par value $0.01 per share
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Warrants
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Guarantees of Debt Securities(3)
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(1)
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There is being registered hereunder such indeterminate number or
amount of debt securities, common stock, preferred stock and
warrants and guarantees of debt securities as may from time to
time be issued at indeterminate prices and as may be issuable
upon conversion, redemption, exchange, exercise or settlement of
any securities registered hereunder, including under any
applicable antidilution provisions. Any securities registered
hereunder may be sold separately or with other securities
registered hereunder. In accordance with Rules 456(b) and
457(r) under the Securities Act of 1933, as amended, the
registrant is deferring payment of all of the registration fee.
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(2)
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In reliance on Rule 456(b) and Rule 457(r) under the
Securities Act, the registrant hereby defers payment of the
registration fee required in connection with this Registration
Statement.
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(3)
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CCBM, Inc., CLLR, Inc. and Hondo Pipeline, Inc. may fully and
unconditionally guarantee any series of debt securities of
Carrizo Oil & Gas, Inc. Pursuant to Rule 457(n),
no separate fee is payable with respect to the guarantees of the
debt securities being registered.
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EXPLANATORY
NOTE
This Amendment No. 1 to the Registration Statement on
Form S-3
of Carrizo Oil & Gas, Inc. is being filed to include
an additional registrant, to update other information and to
submit additional exhibits.
PROSPECTUS
Carrizo
Oil & Gas, Inc.
Senior
Debt Securities
Subordinated
Debt Securities
Common
Stock
Preferred
Stock
Warrants
We will provide the
specific terms of the securities in supplements to this
prospectus. You should read this prospectus and any supplement
carefully before you invest.
Our common stock is
listed on the Nasdaq Global Select Market under the symbol
CRZO.
You should
consider carefully the risk factors beginning on page 2 of
this prospectus and in any applicable prospectus supplement
before purchasing any of our securities.
Neither the
Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
The date of this
prospectus is May 21, 2008.
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we have
filed with the U.S. Securities and Exchange Commission
(SEC) using a shelf registration
process. Using this process, we may offer any combination of the
securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities we may offer. Each time we use
this prospectus to offer securities, we will provide a
prospectus supplement and, if applicable, a pricing supplement
that will describe the specific terms of the offering. The
prospectus supplement and any pricing supplement may also add
to, update or change the information contained in this
prospectus. If there is any inconsistency between the
information in this prospectus and any prospectus supplement,
you should rely on the information in the prospectus supplement.
Please carefully read this prospectus, the prospectus supplement
and any pricing supplement, in addition to the information
contained in the documents we refer to under the heading
Where You Can Find More Information.
You should rely only on the information contained in or
incorporated by reference into this prospectus, the prospectus
supplement and any pricing supplement. We have not authorized
anyone to provide you with different information. You should
assume that the information appearing in or incorporated by
reference into this prospectus, any prospectus supplement and
any pricing supplement is accurate only as of the date on its
cover page and that any information we have incorporated by
reference is accurate only as of the date of the document
incorporated by reference. Our business, financial condition,
results of operations and prospects may have changed since such
dates.
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CARRIZO
OIL & GAS, INC.
We are an independent energy company engaged in the exploration,
development and production of natural gas and oil. Our current
operations are focused in proven, producing natural gas and oil
geologic trends in the Barnett Shale area in North Texas and
along the onshore Gulf Coast area in Texas and Louisiana,
primarily in the Miocene, Wilcox, Frio and Vicksburg trends. Our
other interests include properties in the U.K. North Sea, East
Texas and acreage in shale plays in the Barnett/Woodford in West
Texas/New Mexico, the Floyd/Neal in Mississippi, the
Fayetteville in Arkansas, the western New Albany in
Kentucky/Illinois and the Marcellus Shale in Pennsylvania/New
York/West Virginia and other properties in the Gulf of Mexico.
We also have a coalbed methane investment in the Rocky Mountains
through our ownership of common stock of Pinnacle Gas Resources,
Inc. (Nasdaq National Market: PINN) and through
direct operations. Unless the context otherwise requires, all
references to we, us, our
and the Company refer to Carrizo Oil &
Gas, Inc. and its subsidiaries. The term you refers
to a prospective investor.
Our principal executive offices are located at 1000 Louisiana,
Suite 1500, Houston, Texas 77002, and our telephone number
at that location is
(713) 328-1000.
Information contained on our website,
http://www.crzo.net,
is not part of this prospectus.
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RISK
FACTORS
An investment in our securities involves risks. You should
carefully consider all of the information contained in or
incorporated by reference in this prospectus and other
information which may be incorporated by reference in this
prospectus or any prospectus supplement as provided under
Where You Can Find More Information, including our
Annual Reports on
Form 10-K
and our Quarterly Reports on
Form 10-Q.
This prospectus also contains forward-looking statements that
involve risks and uncertainties. Please read
Forward-Looking Statements. Our actual results could
differ materially from those anticipated in the forward-looking
statements as a result of certain factors, including the risks
described elsewhere in this prospectus or any prospectus
supplement and in the documents incorporated by reference into
this prospectus or any prospectus supplement. If any of these
risks occur, our business, financial condition or results of
operations could be adversely affected. Additional risks not
currently known to us or that we currently deem immaterial may
also have a material adverse effect on us.
Risks
Related to Our Company
Natural
gas and oil drilling is a speculative activity and involves
numerous risks and substantial and uncertain costs that could
adversely affect us.
Our success will be largely dependent upon the success of our
drilling program. Drilling for natural gas and oil involves
numerous risks, including the risk that no commercially
productive natural gas or oil reservoirs will be discovered. The
cost of drilling, completing and operating wells is substantial
and uncertain, and drilling operations may be curtailed, delayed
or canceled as a result of a variety of factors beyond our
control, including:
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unexpected or adverse drilling conditions;
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elevated pressure or irregularities in geologic formations;
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equipment failures or accidents;
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adverse weather conditions;
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compliance with governmental requirements; and
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shortages or delays in the availability of drilling rigs, crews
and equipment.
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Because we identify the areas desirable for drilling from
3-D
seismic
data covering large areas, we may not seek to acquire an option
or lease rights until after the seismic data is analyzed or
until the drilling locations are also identified; in those
cases, we may not be permitted to lease, drill or produce
natural gas or oil from those locations.
Even if drilled, our completed wells may not produce reserves of
natural gas or oil that are economically viable or that meet our
earlier estimates of economically recoverable reserves. Our
overall drilling success rate or our drilling success rate for
activity within a particular project area may decline.
Unsuccessful drilling activities could result in a significant
decline in our production and revenues and materially harm our
operations and financial condition by reducing our available
cash and resources. Because of the risks and uncertainties of
our business, our future performance in exploration and drilling
may not be comparable to our historical performance described in
this prospectus, any prospectus supplement and our filings with
the SEC.
We may
not adhere to our proposed drilling schedule.
Our final determination of whether to drill any scheduled or
budgeted wells will be dependent on a number of factors,
including:
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the results of our exploration efforts and the acquisition,
review and analysis of the seismic data;
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the availability of sufficient capital resources to us and the
other participants for the drilling of the prospects;
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the approval of the prospects by the other participants after
additional data has been compiled;
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economic and industry conditions at the time of drilling,
including prevailing and anticipated prices for natural gas and
oil and the availability and prices of drilling rigs and
crews; and
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the availability of leases and permits on reasonable terms for
the prospects.
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Although we have identified or budgeted for numerous drilling
prospects, we may not be able to lease or drill those prospects
within our expected time frame or at all. Wells that are
currently part of our capital budget may be based on statistical
results of drilling activities in other
3-D
project
areas that we believe are geologically similar rather than on
analysis of seismic or other data in the prospect area, in which
case actual drilling and results are likely to vary, possibly
materially, from those statistical results. In addition, our
drilling schedule may vary from our expectations because of
future uncertainties.
Our
reserve data and estimated discounted future net cash flows are
estimates based on assumptions that may be inaccurate and are
based on existing economic and operating conditions that may
change in the future.
There are uncertainties inherent in estimating natural gas and
oil reserves and their estimated value, including many factors
beyond the control of the producer. The reserve data
incorporated by reference in this prospectus represents only
estimates. Reservoir engineering is a subjective and inexact
process of estimating underground accumulations of natural gas
and oil that cannot be measured in an exact manner and is based
on assumptions that may vary considerably from actual results.
Accordingly, reserve estimates may be subject to upward or
downward adjustment, and actual production, revenue and
expenditures with respect to our reserves likely will vary,
possibly materially, from estimates. Additionally, there
recently has been increased debate and disagreement over the
classification of reserves, with particular focus on proved
undeveloped reserves. Changes in interpretations as to
classification standards, or disagreements with our
interpretations, could cause us to write down these reserves.
As of December 31, 2007, approximately 62% of our proved
reserves were proved undeveloped and proved nonproducing.
Moreover, some of the producing wells included in our reserve
reports as of December 31, 2007 had produced for a
relatively short period of time as of that date. Because most of
our reserve estimates are calculated using volumetric analysis,
those estimates are less reliable than estimates based on a
lengthy production history. Volumetric analysis involves
estimating the volume of a reservoir based on the net feet of
pay of the structure and an estimation of the area covered by
the structure based on seismic analysis. In addition,
realization or recognition of our proved undeveloped reserves
will depend on our development schedule and plans. Lack of
certainty with respect to development plans for proved
undeveloped reserves could cause the discontinuation of the
classification of these reserves as proved. Although we have
increased our development of the Camp Hill Field in East Texas,
we have in the past chosen to delay development of our proved
undeveloped reserves in the Camp Hill Field in favor of pursuing
shorter-term exploration projects with higher potential rates of
return, adding to our lease position in this field and further
evaluating additional economic enhancements for this
fields development.
The discounted future net cash flows incorporated by reference
in this prospectus are not necessarily the same as the current
market value of our estimated natural gas and oil reserves. As
required by the SEC, the estimated discounted future net cash
flows from proved reserves are based on prices and costs as of
the date of the estimate. Actual future net cash flows also will
be affected by factors such as:
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the actual prices we receive for natural gas and oil;
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our actual operating costs in producing natural gas and oil;
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the amount and timing of actual production;
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supply and demand for natural gas and oil;
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increases or decreases in consumption of natural gas and
oil; and
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changes in governmental regulations or taxation.
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In addition, the 10% discount factor we use when calculating
discounted future net cash flows for reporting requirements in
compliance with the Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 69 may not
be the most appropriate discount factor based on interest rates
in effect from time to time and risks associated with us or the
natural gas and oil industry in general.
We
depend on successful exploration, development and acquisitions
to maintain reserves and revenue in the future.
In general, the volume of production from natural gas and oil
properties declines as reserves are depleted, with the rate of
decline depending on reservoir characteristics. Except to the
extent we conduct successful exploration and development
activities or acquire properties containing proved reserves, or
both, our proved reserves will decline as reserves are produced.
Our future natural gas and oil production is, therefore, highly
dependent on our level of success in finding or acquiring
additional reserves. In addition, we are dependent on finding
partners for our exploratory activity. To the extent that others
in the industry do not have the financial resources or choose
not to participate in our exploration activities, we will be
adversely affected.
Natural
gas and oil prices are highly volatile, and lower prices will
negatively affect our financial results.
Our revenue, profitability, cash flow, future growth and ability
to borrow funds or obtain additional capital, as well as the
carrying value of our properties, are substantially dependent on
prevailing prices of natural gas and oil. Historically, the
markets for natural gas and oil prices have been volatile, and
those markets are likely to continue to be volatile in the
future. It is impossible to predict future natural gas and oil
price movements with certainty. Prices for natural gas and oil
are subject to wide fluctuation in response to relatively minor
changes in the supply of and demand for natural gas and oil,
market uncertainty and a variety of additional factors beyond
our control. These factors include:
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the level of consumer product demand;
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overall economic conditions;
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weather conditions;
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domestic and foreign governmental relations, regulations and
taxes;
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the price and availability of alternative fuels;
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political conditions;
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the level and price of foreign imports of oil and liquefied
natural gas; and
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the ability of the members of the Organization of Petroleum
Exporting Countries to agree upon and maintain production
constraints and oil price controls.
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Declines in natural gas and oil prices may materially adversely
affect our financial condition, liquidity and ability to finance
planned capital expenditures and results of operations.
We
face strong competition from other natural gas and oil
companies.
We encounter competition from other natural gas and oil
companies in all areas of our operations, including the
acquisition of exploratory prospects and proven properties. Our
competitors include major integrated natural gas and oil
companies and numerous independent natural gas and oil
companies, individuals and drilling and income programs. Many of
our competitors are large, well-established companies that have
been engaged in the natural gas and oil business much longer
than we have and possess substantially larger operating staffs
and greater capital resources than we do. These companies may be
able to pay more for exploratory projects and productive natural
gas and oil properties and may be able to define, evaluate, bid
for and purchase a greater number of properties and prospects
than our financial or human resources permit. In addition, these
companies may be able to expend greater resources on the
existing and changing technologies that we believe are and will
be increasingly important to attaining success in the industry.
Such competitors may also be in a better position to secure
oilfield services and equipment on a timely basis or on
favorable
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terms. We may not be able to conduct our operations, evaluate
and select suitable properties and consummate transactions
successfully in this highly competitive environment.
We may
not be able to keep pace with technological developments in our
industry.
The natural gas and oil industry is characterized by rapid and
significant technological advancements and introductions of new
products and services using new technologies. As others use or
develop new technologies, we may be placed at a competitive
disadvantage, and competitive pressures may force us to
implement those new technologies at substantial cost. In
addition, other natural gas and oil companies may have greater
financial, technical and personnel resources that allow them to
enjoy technological advantages and may in the future allow them
to implement new technologies before we can. We may not be able
to respond to these competitive pressures and implement new
technologies on a timely basis or at an acceptable cost. If one
or more of the technologies we use now or in the future were to
become obsolete or if we are unable to use the most advanced
commercially available technology, our business, financial
condition and results of operations could be materially
adversely affected.
We are
subject to various governmental regulations and environmental
risks.
Natural gas and oil operations are subject to various US and
foreign federal, state and local government regulations that may
change from time to time. Matters subject to regulation include
discharge permits for drilling operations, plug and abandonment
bonds, reports concerning operations, the spacing of wells,
unitization and pooling of properties and taxation. From time to
time, regulatory agencies have imposed price controls and
limitations on production by restricting the rate of flow of
natural gas and oil wells below actual production capacity in
order to conserve supplies of natural gas and oil. Other
U.S. and foreign federal, state and local laws and
regulations relating primarily to the protection of human health
and the environment apply to the development, production,
handling, storage, transportation and disposal of natural gas
and oil, by-products thereof and other substances and materials
produced or used in connection with natural gas and oil
operations. In addition, we may be liable for environmental
damages caused by previous owners of property we purchase or
lease. As a result, we may incur substantial liabilities to
third parties or governmental entities and may be required to
incur substantial remediation costs. Further, we or our
affiliates hold certain mineral leases in the State of Montana
that require coalbed methane drilling permits, the issuance of
which has been challenged in pending litigation. We may not be
able to obtain new permits in an optimal time period or at all.
We also are subject to changing and extensive tax laws, the
effects of which cannot be predicted. Compliance with existing,
new or modified laws and regulations could have a material
adverse effect on our business, financial condition and results
of operations.
We are
subject to various operating and other casualty risks that could
result in liability exposure or the loss of production and
revenues.
The natural gas and oil business involves operating hazards such
as:
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well blowouts;
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mechanical failures;
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explosions;
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uncontrollable flows of oil, natural gas or well fluids;
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fires;
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geologic formations with abnormal pressures;
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pipeline ruptures or spills;
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releases of toxic gases; and
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other environmental hazards and risks.
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Any of these hazards and risks can result in the loss of
hydrocarbons, environmental pollution, personal injury claims
and other damage to our properties and the property of others.
Offshore operations are subject to a variety of operating risks,
such as capsizing, collisions and damage or loss from hurricanes
or other adverse weather conditions. These conditions can and
have caused substantial damage to facilities and interrupt
production. Our operations in the U.K. North Sea are dependent
upon the availability, proximity and capacity of pipelines,
natural gas gathering systems and processing facilities. Any
significant change affecting these infrastructure facilities
could materially harm our business. We deliver crude oil and
natural gas through gathering systems and pipelines that we do
not own. These facilities may be temporarily unavailable due to
adverse weather conditions or may not be available to us in the
future. As a result, we could incur substantial liabilities or
experience reductions in revenue that could reduce or eliminate
the funds available for our exploration and development programs
and acquisitions, or result in the loss of properties.
A
substantial portion of our operations is exposed to the
additional risk of tropical weather disturbances.
A substantial portion of our production and reserves is located
onshore South Louisiana and Texas. Operations in this area are
subject to tropical weather disturbances. Some of these
disturbances can be severe enough to cause substantial damage to
facilities and possibly interrupt production. For example, a
number of our wells in the Gulf Coast were shut in following
Hurricanes Katrina and Rita in 2005. In accordance with
customary industry practices, we maintain insurance against
some, but not all, of these risks.
Losses could occur for uninsured risks or in amounts in excess
of existing insurance coverage. We cannot assure you that we
will be able to maintain adequate insurance in the future at
rates we consider reasonable or that any particular types of
coverage will be available. An event that is not fully covered
by insurance could have a material adverse effect on our
financial position and results of operations.
We may
not have enough insurance to cover all of the risks we
face.
We maintain insurance against losses and liabilities in
accordance with customary industry practices and in amounts that
management believes to be prudent; however, insurance against
all operational risks is not available to us. We do not carry
business interruption insurance. We may elect not to carry
insurance if management believes that the cost of available
insurance is excessive relative to the risks presented. In
addition, we cannot insure fully against pollution and
environmental risks. The occurrence of an event not fully
covered by insurance could have a material adverse effect on our
financial condition and results of operations.
We
cannot control the activities on properties we do not operate
and are unable to ensure their proper operation and
profitability.
We do not operate all of the properties in which we have an
interest. As a result, we have limited ability to exercise
influence over, and control the risks associated with,
operations of these properties. The failure of an operator of
our wells to adequately perform operations, an operators
breach of the applicable agreements or an operators
failure to act in ways that are in our best interests could
reduce our production and revenues. The success and timing of
our drilling and development activities on properties operated
by others therefore depend upon a number of factors outside of
our control, including the operators
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timing and amount of capital expenditures;
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expertise and financial resources;
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inclusion of other participants in drilling wells; and
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use of technology.
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The
marketability of our natural gas production depends on
facilities that we typically do not own or control, which could
result in a curtailment of production and
revenues.
The marketability of our production depends in part upon the
availability, proximity and capacity of natural gas gathering
systems, pipelines and processing facilities. We generally
deliver natural gas through gas gathering systems and gas
pipelines that we do not own under interruptible or short-term
transportation agreements. Under the interruptible
transportation agreements, the transportation of our gas may be
interrupted due to capacity constraints on the applicable
system, for maintenance or repair of the system, or for other
reasons as dictated by the particular agreements. Our ability to
produce and market natural gas on a commercial basis could be
harmed by any significant change in the cost or availability of
such markets, systems or pipelines.
Our
future acquisitions may yield revenues or production that varies
significantly from our projections.
In acquiring producing properties, we assess the recoverable
reserves, future natural gas and oil prices, operating costs,
potential liabilities and other factors relating to the
properties. Our assessments are necessarily inexact and their
accuracy is inherently uncertain. Our review of a subject
property in connection with our acquisition assessment will not
reveal all existing or potential problems or permit us to become
sufficiently familiar with the property to assess fully its
deficiencies and capabilities. We may not inspect every well,
and we may not be able to observe structural and environmental
problems even when we do inspect a well. If problems are
identified, the seller may be unwilling or unable to provide
effective contractual protection against all or part of those
problems. Any acquisition of property interests may not be
economically successful, and unsuccessful acquisitions may have
a material adverse effect on our financial condition and future
results of operations.
Our
business may suffer if we lose key personnel.
We depend to a large extent on the services of certain key
management personnel, including our executive officers and other
key employees, the loss of any of whom could have a material
adverse effect on our operations. We have entered into
employment agreements with each of S.P. Johnson IV, our
President and Chief Executive Officer, Paul F. Boling, our Vice
President and Chief Financial Officer, J. Bradley Fisher, our
Vice President and Chief Operating Officer, Gregory E. Evans,
our Vice President of Exploration and Richard H. Smith, our Vice
President of Land. We do not maintain key-man life insurance
with respect to any of our employees. Our success will be
dependent on our ability to continue to employ and retain
skilled technical personnel.
We may
experience difficulty in achieving and managing future
growth.
We have experienced growth in the past primarily through the
expansion of our drilling program. Future growth may place
strains on our financial, technical, operational and
administrative resources and cause us to rely more on project
partners and independent contractors, possibly negatively
affecting our financial condition and results of operations. Our
ability to grow will depend on a number of factors, including:
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our ability to obtain leases or options on properties, including
those for which we have
3-D
seismic
data;
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our ability to acquire additional
3-D
seismic
data;
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our ability to identify and acquire new exploratory prospects;
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our ability to develop existing prospects;
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our ability to continue to retain and attract skilled personnel;
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our ability to maintain or enter into new relationships with
project partners and independent contractors;
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the results of our drilling program;
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7
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hydrocarbon prices; and
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our access to capital.
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We may not be successful in upgrading our technical, operations
and administrative resources or in increasing our ability to
internally provide certain of the services currently provided by
outside sources, and we may not be able to maintain or enter
into new relationships with project partners and independent
contractors. Our inability to achieve or manage growth may
adversely affect our financial condition and results of
operations.
We may
continue to enter into derivative transactions to manage the
price risks associated with our production. Our derivative
transactions may result in our making cash payments or prevent
us from benefiting from increases in prices for natural gas and
oil.
Because natural gas and oil prices are unstable, we periodically
enter into price-risk-management transactions such as swaps,
collars, futures and options to reduce our exposure to price
declines associated with a portion of our natural gas and oil
production and thereby to achieve a more predictable cash flow.
The use of these arrangements limits our ability to benefit from
increases in the prices of natural gas and oil. Our derivative
arrangements may apply to only a portion of our production,
thereby providing only partial protection against declines in
natural gas and oil prices. These arrangements may expose us to
the risk of financial loss in certain circumstances, including
instances in which production is less than expected, our
customers fail to purchase contracted quantities of natural gas
and oil or a sudden, unexpected event materially impacts natural
gas or oil prices.
We
have substantial capital requirements that, if not met, may
hinder operations.
We have experienced and expect to continue to experience
substantial capital needs as a result of our active exploration,
development and acquisition programs. We expect that additional
external financing will be required in the future to fund our
growth. We may not be able to obtain additional financing, and
financing under existing or new credit facilities may not be
available in the future. Even if additional capital becomes
available, it may not be on terms acceptable to us. Without
additional capital resources, we may be forced to limit or defer
our planned natural gas and oil exploration and development
program and thereby adversely affect the recoverability and
ultimate value of our natural gas and oil properties, in turn
negatively affecting our business, financial condition and
results of operations.
High
demand for field services and equipment and the ability of
suppliers to meet that demand may limit our ability to drill and
produce our oil and natural gas properties.
Due to current industry demands, well service providers and
related equipment and personnel are in short supply. This is
causing escalating prices, delays in drilling and other
exploration activities, the possibility of poor services coupled
with potential damage to downhole reservoirs and personnel
injuries. Such pressures will likely increase the actual cost of
services, extend the time to secure such services and add costs
for damages due to any accidents sustained from the overuse of
equipment and inexperienced personnel.
Our
credit facilities contain operating restrictions and financial
covenants, and we may have difficulty obtaining additional
credit.
Over the past few years, increases in commodity prices and
proved reserve amounts and the resulting increase in our
estimated discounted future net revenue have allowed us to
increase our available borrowing amounts. In the future,
commodity prices may decline, we may increase our borrowings or
our borrowing base may be adjusted downward, thereby reducing
our borrowing capacity. Our credit facilities are secured by a
pledge of substantially all of our producing natural gas and oil
properties and assets, are guaranteed by our subsidiaries CCBM,
Inc., CLLR, Inc. and Hondo Pipeline, Inc. and contain covenants
that limit additional borrowings, dividends, the incurrence of
liens, investments, sales or pledges of assets, changes in
control, repurchases or redemptions for cash of our common
stock, speculative commodity transactions and other matters. The
credit facilities also require that specified financial ratios
be maintained. We may not be able to
8
refinance our debt or obtain additional financing, particularly
in view of the restrictions of our credit facilities on our
ability to incur additional debt and the fact that substantially
all of our assets are currently pledged to secure obligations
under the credit facilities. The restrictions of our credit
facilities and our difficulty in obtaining additional debt
financing may have adverse consequences on our operations and
financial results including:
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our ability to obtain financing for working capital, capital
expenditures, our drilling program, purchases of new technology
or other purposes may be impaired;
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the covenants in our credit facilities that limit our ability to
borrow additional funds and dispose of assets may affect our
flexibility in planning for, and reacting to, changes in
business conditions;
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because our indebtedness is subject to variable interest rates,
we are vulnerable to increases in interest rates;
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any additional financing we obtain may be on unfavorable terms;
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we may be required to use a substantial portion of our cash flow
to make debt service payments, which will reduce the funds that
would otherwise be available for operations and future business
opportunities;
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a substantial decrease in our operating cash flow or an increase
in our expenses could make it difficult for us to meet debt
service requirements and could require us to modify our
operations, including by curtailing portions of our drilling
program, selling assets, reducing our capital expenditures,
refinancing all or a portion of our existing debt or obtaining
additional financing; and
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we may become more vulnerable to downturns in our business or
the economy.
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In addition, under the terms of our credit facilities, our
borrowing base is subject to redeterminations at least
semi-annually based in part on prevailing natural gas and oil
prices. In the event the amount outstanding exceeds the
redetermined borrowing base, we could be forced to repay a
portion of our borrowings. We may not have sufficient funds to
make any required repayment. If we do not have sufficient funds
and are otherwise unable to negotiate renewals of our borrowings
or arrange new financing, we may have to sell a portion of our
assets.
We may
record ceiling limitation write-downs that would reduce our
shareholders equity.
We use the full-cost method of accounting for investments in
natural gas and oil properties. Accordingly, we capitalize all
the direct costs of acquiring, exploring for and developing
natural gas and oil properties. Under the full-cost accounting
rules, the net capitalized cost of natural gas and oil
properties may not exceed a ceiling limit that is
based on the present value of estimated future net revenues from
proved reserves, discounted at 10%, plus the lower of the cost
or the fair market value of unproved properties. If net
capitalized costs of natural gas and oil properties exceed the
ceiling limit, we must charge the amount of the excess to
operations through depreciation, depletion and amortization
expense. This charge is called a ceiling limitation
write-down. This charge does not impact cash flow from
operating activities but does reduce our shareholders
equity. The risk that we will be required to write down the
carrying value of our natural gas and oil properties increases
when natural gas and oil prices are low or volatile. In
addition, write-downs would occur if we were to experience
sufficient downward adjustments to our estimated proved reserves
or the present value of estimated future net revenues, as
further discussed in Our reserve data and
estimated discounted future net cash flows are estimates based
on assumptions that may be inaccurate and are based on existing
economic and operating conditions that may change in the
future. Once incurred, a write-down of natural gas and oil
properties is not reversible at a later date.
We
participate in oil and natural gas leases with third
parties.
We may own less than 100% of the working interest in certain
leases acquired by us, and other parties will own the remaining
portion of the working interest. Financial risks are inherent in
any operation where the cost of drilling, equipping, completing
and operating wells is shared by more than one person. We could
be
9
held liable for the joint activity obligations of the other
working interest owners such as nonpayment of costs and
liabilities arising from the actions of the working interest
owners. In the event other working interest owners do not pay
their share of such costs, we would likely have to pay those
costs, which could materially adversely affect our financial
condition.
We may
incur losses as a result of title deficiencies.
We purchase working and revenue interests in the natural gas and
oil leasehold interests upon which we will perform our
exploration activities from third parties or directly from the
mineral fee owners. The existence of a material title deficiency
can render a lease worthless and can adversely affect our
results of operations and financial condition. Title insurance
covering mineral leaseholds is not generally available and, in
all instances, we forego the expense of retaining lawyers to
examine the title to the mineral interest to be placed under
lease or already placed under lease until the drilling block is
assembled and ready to be drilled. As is customary in our
industry, we rely upon the judgment of natural gas and oil lease
brokers or independent landmen who perform the field work in
examining records in the appropriate governmental offices and
abstract facilities before attempting to acquire or place under
lease a specific mineral interest. We, in some cases, perform
curative work to correct deficiencies in the marketability of
the title to us. The work might include obtaining affidavits of
heirship or causing an estate to be administered. In cases
involving more serious title problems, the amount paid for
affected natural gas and oil leases can be generally lost, and
the target area can become undrillable.
We
have risks associated with our foreign operations.
We currently have international activities and we continue to
evaluate and pursue new opportunities for international
expansion in select areas. Ownership of property interests and
production operations in areas outside the United States is
subject to the various risks inherent in foreign operations.
These risks may include:
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currency restrictions and exchange rate fluctuations;
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loss of revenue, property and equipment as a result of
expropriation, nationalization, war or insurrection;
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increases in taxes and governmental royalties;
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renegotiation of contracts with governmental entities and
quasi-governmental agencies;
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changes in laws and policies governing operations of
foreign-based companies;
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labor problems; and
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other uncertainties arising out of foreign government
sovereignty over our international operations.
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Our international operations also may be adversely affected by
the laws and policies of the United States affecting foreign
trade, taxation and investment. In addition, if a dispute arises
with respect to our foreign operations, we may be subject to the
exclusive jurisdiction of foreign courts or may not be
successful in subjecting foreign persons to the jurisdiction of
the courts of the United States.
The
threat and impact of terrorist attacks or similar hostilities
may adversely impact our operations.
We cannot assess the extent of either the threat or the
potential impact of future terrorist attacks on the energy
industry in general, and on us in particular, either in the
short-term or in the long-term. Uncertainty surrounding such
hostilities may affect our operations in unpredictable ways,
including the possibility that infrastructure facilities,
including pipelines and gathering systems, production
facilities, processing plants and refineries, could be targets
of, or indirect casualties of, an act of terror or war.
10
Risks
Related to Our Common Stock
The
market price of our common stock is volatile.
The trading price of our common stock and the price at which we
may sell common stock in the future are subject to large
fluctuations in response to any of the following:
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limited trading volume in our common stock;
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quarterly variations in operating results;
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our involvement in litigation;
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general financial market conditions;
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the prices of natural gas and oil;
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announcements by us and our competitors;
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our liquidity;
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our ability to raise additional funds;
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changes in government regulations; and
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other events.
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We do
not anticipate paying dividends on our common stock in the near
future.
We have not paid any dividends on our common stock in the past
and do not intend to pay cash dividends on our common stock in
the foreseeable future. We currently intend to retain any
earnings for the future operation and development of our
business, including exploration, development and acquisition
activities. Any future dividend payments will be restricted by
the terms of our credit facilities.
Certain
anti-takeover provisions may affect your rights as a
shareholder.
Our articles of incorporation authorize our board of directors
to set the terms of and issue preferred stock without
shareholder approval. Our board of directors could use the
preferred stock as a means to delay, defer or prevent a takeover
attempt that a shareholder might consider to be in our best
interest. In addition, our credit facilities contain terms that
may restrict our ability to enter into change of control
transactions, including requirements to repay our credit
facilities on a change in control. These provisions, along with
specified provisions of the Texas Business Corporation Act and
our articles of incorporation and bylaws, may discourage or
impede transactions involving actual or potential changes in our
control, including transactions that otherwise could involve
payment of a premium over prevailing market prices to holders of
our common stock.
Sales
of substantial amounts of shares of our common stock could cause
the price of our common stock to decrease.
This prospectus covers the issuance by us of a substantial
number of shares of our common stock. In addition, other
investors may sell substantial number of shares of our common
stock, as described in other filings under the Securities Act.
These shares previously were not freely tradeable in the market.
Our stock price may decrease due to the additional amount of
shares available in the market.
11
Risks
Related to Debt Securities
A
holders right to receive payments on the debt securities
is effectively subordinate to the rights of our existing and
future secured creditors. Further, the guarantees of senior debt
securities by the subsidiary guarantors are effectively
subordinated to the subsidiary guarantors existing and
future secured indebtedness.
Holders of our secured indebtedness and the secured indebtedness
of the subsidiary guarantors will have claims that are prior to
the claims of holders of senior debt securities to the extent of
the value of the assets securing that other indebtedness.
Notably, we are party to two credit facilities, which are
secured by liens on substantially all of our assets and are
guaranteed by our subsidiaries CCBM, Inc., CLLR, Inc. and Hondo
Pipeline, Inc. The senior debt securities will be effectively
subordinated to that secured indebtedness. In the event of any
distribution or payment of our assets in any foreclosure,
dissolution,
winding-up,
liquidation, reorganization or other bankruptcy proceeding,
holders of secured indebtedness will have prior claim to our
assets that constitute their collateral. Holders of the senior
debt securities will participate ratably with all holders of our
unsecured indebtedness that is deemed to be of the same class as
the senior debt securities, and potentially with all of our
other general creditors, based upon the respective amounts owed
to each holder or creditor, in our remaining assets. In any of
the foregoing events, we cannot assure you that there will be
sufficient assets to pay amounts due on the senior debt
securities. As a result, holders of senior debt securities may
receive less, ratably, than holders of senior indebtedness.
Holders
of debt securities may be structurally subordinated to the
creditors of our subsidiaries.
We currently conduct our coalbed methane operations and hold
interests in Pinnacle Gas Resources, Inc. through our
wholly-owned subsidiary CCBM, Inc. We also hold a large portion
of our interests in the Barnett Shale area in North Texas
through our wholly owned subsidiary CLLR, Inc. Contractual
provisions or laws, as well as our subsidiaries financial
condition and operating requirements, may limit our ability to
obtain cash from our subsidiaries that we use to pay our debt
service obligations, including payments on the debt securities.
In addition, holders of the debt securities will have a junior
position to the claims of creditors, including trade creditors
and tort claimants, of our subsidiaries to the extent that our
subsidiaries do not guarantee such debt securities.
A
holders right to receive payments on the debt securities
could be adversely affected if any of our subsidiaries is not a
guarantor of the debt securities and declares bankruptcy,
liquidates or reorganizes.
If any of our subsidiaries is not a guarantor of the debt
securities and declares bankruptcy, liquidates or reorganizes,
holders of such subsidiarys indebtedness and its trade
creditors will generally be entitled to payment of their claims
from the assets of the subsidiary before any assets are made
available for distribution to us.
Federal
and state statutes allow courts, under specific circumstances,
to void guarantees and require holders of the debt securities to
return payments received from guarantors.
Under the federal bankruptcy law and comparable provisions of
state fraudulent transfer laws, a guarantee could be voided or
claims in respect of a guarantee could be subordinated to all
other debts of the applicable guarantor if, among other things,
the guarantor, at the time it incurred the indebtedness
evidenced by its guarantee received less than reasonably
equivalent value or fair consideration for the incurrence of
such guarantee and either:
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was insolvent or rendered insolvent by reason of such incurrence;
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was engaged or about to engage in a business or transaction for
which the guarantors remaining assets constituted
unreasonably small capital; or
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intended to incur, or believed that it would incur, debts beyond
its ability to pay such debts as they mature.
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12
In addition, any payment by that guarantor pursuant to its
guarantee could be voided and required to be returned to the
guarantor or to a fund for the benefit of the creditors of the
guarantor.
The measures of insolvency for purposes of these fraudulent
transfer laws will vary depending upon the law applied in any
proceeding to determine whether a fraudulent transfer has
occurred. Generally, a guarantor would be considered insolvent
if, at the relevant time, the sum of its debts and other
liabilities, including contingent liabilities, was greater than
the sum of its assets at a fair valuation, and a guarantor that
was generally not then paying its debts as they became due would
be presumed to be insolvent.
We may
incur additional debt ranking equal to the debt
securities.
If we incur additional debt that ranks equally with the debt
securities, the holders of that debt will be entitled to share
ratably with the holders of the debt securities in any proceeds
distributed in connection with any insolvency liquidation,
reorganization, dissolution and other
winding-up
of us. This may have the effect of reducing the amount of
proceeds paid to holders of debt securities.
13
FORWARD-LOOKING
STATEMENTS
This prospectus, including the documents incorporated by
reference in this prospectus, contains statements concerning our
expectations, beliefs, plans, objectives, goals, strategies,
future events or performance and underlying assumptions and
other statements that are not historical facts. These statements
are forward-looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. These
forward-looking statements include, among others, statements
regarding:
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our growth strategies;
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our ability to explore for and develop natural gas and oil
resources successfully and economically;
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our estimates of the timing and number of wells we expect to
drill and other exploration activities;
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anticipated trends in our business;
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our future results of operations;
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our liquidity and our ability to finance our exploration and
development activities;
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our capital expenditure program;
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future market conditions in the oil and gas industry;
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our ability to make and integrate acquisitions; and
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the impact of governmental regulation.
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You generally can identify our forward-looking statements by the
words anticipate, believe,
budgeted, continue, could,
estimate, expect, forecast,
goal, intend, may,
objective, plan, potential,
predict, projection,
scheduled, should, or other similar
words. More specifically, our forward-looking statements
include, among others, statements relating to our schedule,
targets, estimates or results of future drilling, including the
number, timing and results of wells, budgeted wells, increases
in wells, the timing and risk involved in drilling
follow-up
wells, expected working or net revenue interests, planned
expenditures, prospects budgeted and other future capital
expenditures, risk profile of oil and gas exploration,
acquisition of
3-D
seismic
data (including number, timing and size of projects), planned
evaluation of prospects, probability of prospects having oil and
natural gas, expected production or reserves, increases in
reserves, acreage, working capital requirements, hedging
activities, the ability of expected sources of liquidity to
implement our business strategy, future hiring, future
exploration activity, production rates, potential drilling
locations targeting coal seams, the outcome of legal challenges
to new coalbed methane drilling permits in Montana, financing
for our 2008 exploration and development program, and any other
statements regarding future operations, financial results,
business plans and cash needs and other statements that are not
historical facts. Such statements involve risks and
uncertainties, including, but not limited to, those relating to
our dependence on our exploratory drilling activities, the
volatility of oil and natural gas prices, the need to replace
reserves depleted by production, operating risks of oil and
natural gas operations, our dependence on our key personnel,
factors that affect our ability to manage our growth and achieve
our business strategy, risks relating to our limited operating
history in certain geographic areas, technological changes, our
significant capital requirements, the potential impact of
government regulations, adverse regulatory determinations,
litigation, competition, the uncertainty of reserve information
and future net revenue estimates, property acquisition risks,
industry partner issues, availability of equipment, weather,
availability of financing, ability to obtain permits, the
results of audits and assessments and other factors detailed in
this prospectus and in our filings with the SEC.
We have based our forward-looking statements on our
managements beliefs and assumptions based on information
available to our management at the time the statements are made.
We caution you that assumptions, beliefs, expectations,
intentions and projections about future events may and often do
vary materially from actual results. Therefore, we cannot assure
you that actual results will not differ materially from those
expressed or implied by our forward-looking statements.
14
Some of the factors that could cause actual results to differ
from those expressed or implied in forward-looking statements
are described under Risk Factors and in other
sections of this prospectus and described under Risk
Factors and elsewhere in the documents that we incorporate
by reference into this prospectus, including our annual report
on
Form 10-K
for the fiscal year ended December 31, 2007 and in our
other reports filed with the SEC. Should one or more of these
risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual outcomes may vary materially
from those indicated. All subsequent written and oral
forward-looking statements attributable to us or persons acting
on our behalf are expressly qualified in their entirety by
reference to these risks and uncertainties. You should not place
undue reliance on our forward-looking statements. Each
forward-looking statement speaks only as of the date of the
particular statement, and, except as required by law, we
undertake no duty to update any forward-looking statement.
USE OF
PROCEEDS
Unless we inform you otherwise in the prospectus supplement, the
net proceeds from the sale of the securities will be used for
general corporate purposes, including:
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repayment or refinancing of debt,
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acquisitions,
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working capital,
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capital expenditures, and
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repurchases and redemptions of securities.
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Pending any specific application, we may initially invest funds
in short-term marketable securities or apply them to the
reduction of other short-term indebtedness.
15
RATIO OF
EARNINGS TO FIXED CHARGES AND EARNINGS TO
COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table presents our historical ratio of earnings to
fixed charges and historical ratio of earnings to combined fixed
charges and preferred stock dividends for each of the years in
the five-year period ended December 31, 2007 and for the
three months ended March 31, 2008.
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Three Months
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Ended
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March 31,
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Year Ended December 31,
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2008
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2007
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2006
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2005
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2004
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2003
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Ratio of Earnings to Fixed Charges
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(1)
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1.49
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x
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1.97
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x
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2.11
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x
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5.18
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x
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4.40
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x
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Ratio of Earnings to Combined Fixed Charges and Preferred Stock
Dividends
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(1)
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1.49
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x
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1.97
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x
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2.11
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x
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4.72
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3.53
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x
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(1)
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Earnings for the quarter ended March 31, 2008 were
insufficient to cover fixed charges by $5.1 million due to
non-cash charges of $29.1 million associated with changes
to the mark-to-market value of outstanding oil and natural gas
derivatives and interest rate swaps.
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For purposes of this table, earnings consist of
income before income taxes, extraordinary items and cumulative
effect of accounting changes, plus fixed charges (excluding
capitalized interest, but including amortization of amounts
previously capitalized). Fixed charges consist of
interest (including capitalized interest) on all debt,
amortization of debt discounts and expenses incurred on
issuance, and an estimate of the interest within rental expense.
16
DESCRIPTION
OF DEBT SECURITIES
Our debt securities covered by this prospectus will be our
general unsecured obligations. We will issue senior debt
securities on a senior unsecured basis under one or more
separate indentures between us, one or more of our subsidiaries
CCBM, Inc., CLLR, Inc. and Hondo Pipeline, Inc., if they are
guarantors (the Subsidiary Guarantors), and a
trustee that we will name in the prospectus supplement. We refer
to any such indenture as a senior indenture. We will issue
subordinated debt securities under one or more separate
indentures between us, the Subsidiary Guarantors, if applicable,
and a trustee that we will name in the prospectus supplement. We
refer to any such indenture as a subordinated indenture. We
refer to the senior indentures and the subordinated indentures
collectively as the indentures. The indentures will be
substantially identical, except for provisions relating to
subordination. The senior debt securities will constitute senior
debt and will rank equally with all of our unsecured and
unsubordinated debt. The subordinated debt securities will be
subordinated to, and thus have a junior position to, our senior
debt (as defined with respect to the series of subordinated debt
securities) and may rank equally with or senior or junior to our
other subordinated debt that may be outstanding from time to
time.
We have summarized material provisions of the indentures, the
debt securities and the guarantees below. This summary is not
complete. We have filed the form of senior indenture and the
form of subordinated indenture with the SEC as exhibits to the
registration statement, and you should read the indentures for
provisions that may be important to you. Please read Where
You Can Find More Information.
In this summary description of the debt securities, unless we
state otherwise or the context clearly indicates otherwise, all
references to us or we mean Carrizo
Oil & Gas, Inc. only.
Provisions
applicable to each indenture
General.
The indentures do not limit the
amount of debt securities that may be issued under that
indenture, and do not limit the amount of other unsecured debt
or securities that we may issue. We may issue debt securities
under the indentures from time to time in one or more series,
each in an amount authorized prior to issuance. The indentures
also give us the ability to reopen a previous issue of a series
of debt securities and issue additional debt securities of that
series.
The indentures do not contain any covenants or other provisions
designed to protect holders of the debt securities in the event
we participate in a highly leveraged transaction or upon a
change of control. The indentures also do not contain provisions
that give holders the right to require us to repurchase their
securities in the event of a decline in our credit ratings for
any reason, including as a result of a takeover,
recapitalization or similar restructuring or otherwise.
Terms.
The prospectus supplement relating to
any series of debt securities being offered will include
specific terms relating to the offering. These terms will
include some or all of the following:
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whether the debt securities will be senior or subordinated debt
securities;
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the title of the debt securities;
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the total principal amount of the debt securities;
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whether the debt securities will be issued in individual
certificates to each holder or in the form of temporary or
permanent global debt securities held by a depositary on behalf
of holders;
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the date or dates on which the principal of and any premium on
the debt securities will be payable;
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any interest rate, the date from which interest will accrue,
interest payment dates and record dates for interest payments;
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any right to extend or defer the interest payment periods and
the duration of the extension;
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whether and under what circumstances any additional amounts with
respect to the debt securities will be payable;
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whether debt securities are entitled to a guarantee of any
Subsidiary Guarantors;
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the place or places where payments on the debt securities will
be payable;
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any provisions for optional redemption or early repayment;
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any sinking fund or other provisions that would require the
redemption, purchase or repayment of debt securities;
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the denominations in which the debt securities will be issued,
if other than denominations of $1,000 and integral multiples
thereof;
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whether payments on the debt securities will be payable in
foreign currency or currency units or another form and whether
payments will be payable by reference to any index or formula;
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the portion of the principal amount of debt securities that will
be payable if the maturity is accelerated, if other than the
entire principal amount;
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any additional means of defeasance of the debt securities, any
additional conditions or limitations to defeasance of the debt
securities or any changes to those conditions or limitations;
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any changes or additions to the events of default or covenants
described in this prospectus;
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any restrictions or other provisions relating to the transfer or
exchange of debt securities;
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any terms for the conversion or exchange of the debt securities
for other securities of ours or any other entity;
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with respect to any subordinated indenture, any changes to the
subordination provisions for the subordinated debt
securities; and
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any other terms of the debt securities not prohibited by the
applicable indenture.
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We may sell the debt securities at a discount, which may be
substantial, below their stated principal amount. These debt
securities may bear no interest or interest at a rate that at
the time of issuance is below market rates. If we sell these
debt securities, we will describe in the prospectus supplement
any material United States federal income tax consequences and
other special considerations.
If we sell any of the debt securities for any foreign currency
or currency unit or if payments on the debt securities are
payable in any foreign currency or currency unit, we will
describe in the prospectus supplement the restrictions,
elections, tax consequences, specific terms and other
information relating to those debt securities and the foreign
currency or currency unit.
Consolidation, Merger and Sale of Assets.
The
indentures generally permit a consolidation or merger between us
or any Subsidiary Guarantor and another entity. They also permit
any Subsidiary Guarantor or us to sell, lease, convey, transfer
or otherwise dispose of all or substantially all of our assets.
We and any Subsidiary Guarantors have agreed, however, that we
will not consolidate with or merge into any entity or sell,
lease, convey, transfer or otherwise dispose of all or
substantially all of our assets to any entity unless:
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immediately after giving effect to the transaction, no default
or event of default would occur and be continuing or would
result from the transaction; and
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if we or the Subsidiary Guarantor, as the case may be, are not
the continuing entity, the resulting entity or transferee
assumes the due and punctual payments on the debt securities and
the performance of our covenants and obligations under the
indenture and the debt securities.
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Upon any such consolidation or merger in which we are not the
continuing entity or any such asset sale, lease, conveyance,
transfer or disposition involving us, the resulting entity or
transferee will be substituted for us under the applicable
indenture and debt securities. In the case of an asset sale,
conveyance, transfer or disposition other than a lease, we will
be released from the applicable indenture.
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Events of Default.
Unless we inform you
otherwise in the applicable prospectus supplement, the following
are events of default with respect to a series of debt
securities:
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failure to pay interest when due on that series of debt
securities for 30 days;
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failure to pay principal of or any premium on that series of
debt securities when due;
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failure to make any sinking fund payment when required for that
series for 30 days;
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failure to comply with any covenant or agreement in that series
of debt securities or the applicable indenture (other than an
agreement or covenant that has been included in the indenture
solely for the benefit of one or more other series of debt
securities) for 90 days after written notice by the trustee
or by the holders of at least 25% in principal amount of each
series of debt securities issued under that indenture that are
affected by that failure;
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specified events involving bankruptcy, insolvency or
reorganization of Carrizo Oil & Gas, Inc. or any
Subsidiary Guarantor, if it is a guarantor with respect to that
series of debt securities and it is a significant
subsidiary as defined in Article I,
Rule 1-02
of
Regulation S-X
promulgated under the Securities Act;
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specified events involving the guarantees; and
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any other event of default provided for that series of debt
securities.
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A default under one series of debt securities will not
necessarily be a default under another series. The indentures
provide that the trustee generally must mail notice of a default
or event of default of which it has actual knowledge to the
registered holders of the applicable debt securities within
90 days of occurrence. However, the trustee may withhold
notice to the holders of the debt securities of any default or
event of default (except in any payment on the debt securities)
if the trustee considers it in the interest of the holders of
the debt securities to do so.
If an event of default relating to certain events of bankruptcy,
insolvency or reorganization occurs, the principal of and
interest on all the debt securities issued under the applicable
indenture will become immediately due and payable without any
action on the part of the trustee or any holder. If any other
event of default for any series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in
principal amount of the outstanding debt securities of the
series affected by the default may declare the principal of and
all accrued and unpaid interest on those debt securities
immediately due and payable. The holders of a majority in
principal amount of the outstanding debt securities of the
series affected by the event of default may in some cases
rescind this accelerated payment requirement.
A holder of a debt security of any series issued under an
indenture may pursue any remedy under that indenture only if:
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the holder gives the trustee written notice of a continuing
event of default for that series;
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the holders of at least 25% in principal amount of the
outstanding debt securities of that series make a written
request to the trustee to pursue the remedy;
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the holders offer to the trustee indemnity satisfactory to the
trustee;
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the trustee fails to act for a period of 60 days after
receipt of the request and offer of indemnity; and
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during that
60-day
period, the holders of a majority in principal amount of the
debt securities of that series do not give the trustee a
direction inconsistent with the request.
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This provision does not, however, affect the right of a holder
of a debt security to sue for enforcement of any overdue payment.
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In most cases, holders of a majority in principal amount of the
outstanding debt securities of a series may direct the time,
method and place of:
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with respect to debt securities of a series, conducting any
proceeding for any remedy available to the trustee and
exercising any trust or power conferred on the trustee relating
to or arising as a result of specified events of default; or
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with respect to all debt securities issued under the applicable
indenture that are affected, conducting any proceeding for any
remedy available to the trustee and exercising any trust or
power conferred on the trustee relating to or arising other than
as a result of such specified events of default.
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The trustee, however, may refuse to follow any such direction
that conflicts with law or the indentures, is unduly prejudicial
to the rights of other holders of the debt securities, or would
involve the trustee in personal liability. In addition, prior to
acting at the direction of holders, the trustee will be entitled
to be indemnified by those holders against any loss and expenses
caused thereby.
The indentures require us to file each year with the trustee a
written statement as to our compliance with the covenants
contained in the applicable indenture.
Modification and Waiver.
Each indenture may be
amended or supplemented if the holders of a majority in
principal amount of the outstanding debt securities of each
series issued under that indenture that are affected by the
amendment or supplement consent to it. Without the consent of
the holder of each debt security issued under the indenture and
affected, however, no modification to that indenture may:
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reduce the amount of debt securities whose holders must consent
to an amendment, supplement or waiver;
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reduce the rate of or change the time for payment of interest on
the debt security;
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reduce the principal of the debt security or change its stated
maturity;
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reduce any premium payable on the redemption of the debt
security or change the time at which the debt security may or
must be redeemed;
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change any obligation to pay additional amounts on the debt
security;
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make payments on the debt security payable in currency other
than as originally stated in the debt security;
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impair the holders right to institute suit for the
enforcement of any payment on the debt security;
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make any change in the percentage of principal amount of debt
securities necessary to waive compliance with certain provisions
of the indenture or to make any change in the provision related
to modification;
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with respect to the subordinated indenture, modify the
provisions relating to the subordination of any subordinated
debt security in a manner adverse to the holder of that
security; or
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waive a continuing default or event of default regarding any
payment on the debt securities.
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Each indenture may be amended or supplemented or any provision
of that indenture may be waived without the consent of any
holders of debt securities issued under that indenture in
certain circumstances, including:
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to cure any ambiguity, omission, defect or inconsistency;
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to provide for the assumption of our obligations under the
indenture by a successor upon any merger or consolidation or
asset sale, lease, conveyance, transfer or other disposition of
all or substantially all of our assets, in each case as
permitted under the indenture;
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to provide for uncertificated debt securities in addition to or
in place of certificated debt securities or to provide for
bearer debt securities;
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to provide any security for, any guarantees of or any additional
obligors on any series of debt securities;
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to comply with any requirement to effect or maintain the
qualification of that indenture under the Trust Indenture
Act of 1939, as amended (the Trust Indenture
Act);
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to add covenants that would benefit the holders of any debt
securities or to surrender any rights we have under the
indenture;
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to add events of default with respect to any debt securities;
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to make any change that does not adversely affect any
outstanding debt securities of any series issued under that
indenture in any material respect; provided, that any change
made solely to conform the provisions of the indenture to a
description of debt securities in a prospectus supplement will
not be deemed to adversely affect any outstanding debt
securities of that series issued in any material
respect; and
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to supplement the provisions of an indenture to permit or
facilitate defeasance or discharge of securities that does not
adversely affect any outstanding debt securities of any series
issued under that indenture in any material respect.
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The holders of a majority in principal amount of the outstanding
debt securities of any series may waive any existing or past
default or event of default with respect to those debt
securities. Those holders may not, however, waive any default or
event of default in any payment on any debt security or
compliance with a provision that cannot be amended or
supplemented without the consent of each holder affected.
Defeasance.
When we use the term defeasance,
we mean discharge from some or all of our obligations under an
indenture. If any combination of funds or government securities
are deposited with the trustee under an indenture sufficient to
make payments on the debt securities of a series issued under
that indenture on the dates those payments are due and payable,
then, at our option, either of the following will occur:
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we and any Subsidiary Guarantors will be discharged from our
obligations with respect to the debt securities of that series
(legal defeasance); or
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we and any Subsidiary Guarantors will no longer have any
obligation to comply with the consolidation, merger and sale of
assets covenant and other specified covenants relating to the
debt securities of that series, and the related events of
default will no longer apply (covenant defeasance).
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If a series of debt securities is defeased, the holders of the
debt securities of the series affected will not be entitled to
the benefits of the applicable indenture, except for obligations
to register the transfer or exchange of debt securities, replace
stolen, lost or mutilated debt securities or maintain paying
agencies and hold moneys for payment in trust. In the case of
covenant defeasance, our obligation to pay principal, premium
and interest on the debt securities and, if applicable, a
Subsidiary Guarantors guarantee of the payments, will also
survive.
Unless we inform you otherwise in the prospectus supplement, we
will be required to deliver to the trustee an opinion of counsel
that the deposit and related defeasance would not cause the
holders of the debt securities to recognize income, gain or loss
for U.S. federal income tax purposes. If we elect legal
defeasance, that opinion of counsel must be based upon a ruling
from the U.S. Internal Revenue Service or a change in law
to that effect.
Governing Law.
New York law will govern the
indentures, the debt securities and the guarantees.
Trustee.
If an event of default occurs under
an indenture and is continuing, the trustee under that indenture
will be required to use the degree of care and skill of a
prudent person in the conduct of that persons own affairs.
The trustee will become obligated to exercise any of its powers
under that indenture at the request of any of the holders of any
debt securities issued under that indenture only after those
holders have offered the trustee indemnity satisfactory
to it.
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Each indenture contains limitations on the right of the trustee,
if it becomes our creditor or, if applicable, a creditor of any
Subsidiary Guarantor, to obtain payment of claims or to realize
on certain property received for any such claim, as security or
otherwise. The trustee is permitted to engage in other
transactions with us or, if applicable, any Subsidiary
Guarantor. If, however, it acquires any conflicting interest, it
must eliminate that conflict or resign within 90 days after
ascertaining that it has a conflicting interest and after the
occurrence of a default under the applicable indenture, unless
the default has been cured, waived or otherwise eliminated
within the
90-day
period.
Form, Exchange, Registration and Transfer.
The
debt securities will be issued in registered form, without
interest coupons. There will be no service charge for any
registration of transfer or exchange of the debt securities.
However, payment of any transfer tax or similar governmental
charge payable for that registration may be required.
Debt securities of any series will be exchangeable for other
debt securities of the same series, the same total principal
amount and the same terms but in different authorized
denominations in accordance with the applicable indenture.
Holders may present debt securities for registration of transfer
at the office of the security registrar or any transfer agent we
designate. The security registrar or transfer agent will effect
the transfer or exchange if its requirements and the
requirements of the applicable indenture are met.
The trustee will be appointed as security registrar for the debt
securities. If a prospectus supplement refers to any transfer
agents we initially designate, we may at any time rescind that
designation or approve a change in the location through which
any transfer agent acts. We are required to maintain an office
or agency for transfers and exchanges in each place of payment.
We may at any time designate additional transfer agents for any
series of debt securities.
In the case of any redemption, we will not be required to
register the transfer or exchange of:
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any debt security during a period beginning 15 business days
prior to the mailing of any notice of redemption or mandatory
offer to repurchase and ending on the close of business on the
day of mailing of such notice; or
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any debt security that has been called for redemption in whole
or in part, except the unredeemed portion of any debt security
being redeemed in part.
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Payment and Paying Agent.
Unless we inform you
otherwise in a prospectus supplement, payments on the debt
securities will be made in U.S. dollars at the office of
the trustee and any paying agent. At our option, however,
payments may be made by wire transfer for global debt securities
or by check mailed to the address of the person entitled to the
payment as it appears in the security register. Unless we inform
you otherwise in a prospectus supplement, interest payments will
be made to the person in whose name the debt security is
registered at the close of business on the record date for the
interest payment.
Unless we inform you otherwise in a prospectus supplement, the
trustee under the applicable indenture will be designated as the
paying agent for payments on debt securities issued under that
indenture. We may at any time designate additional paying agents
or rescind the designation of any paying agent or approve a
change in the office through which any paying agent acts.
If the principal of or any premium or interest on debt
securities of a series is payable on a day that is not a
business day, the payment will be made on the next succeeding
business day as if made on the date that the payment was due and
no interest will accrue on that payment for the period from and
after the due date to the date of that payment on the next
succeeding business date. For these purposes, unless we inform
you otherwise in a prospectus supplement, a business
day is any day that is not a Saturday, a Sunday or a day
on which banking institutions in any of New York, New York or
Houston, Texas or a place of payment on the debt securities of
that series is authorized or obligated by law, regulation or
executive order to remain closed.
Subject to the requirements of any applicable abandoned property
laws, the trustee and paying agent will pay to us upon written
request any money held by them for payments on the debt
securities that remains unclaimed for two years after the date
upon which that payment has become due. After payment to us,
holders
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entitled to the money must look to us for payment. In that case,
all liability of the trustee or paying agent with respect to
that money will cease.
Notices.
Any notice required by the indentures
to be provided to holders of the debt securities will be given
by mail to the registered holders at the addresses as they
appear in the security register.
Replacement of Debt Securities.
We will
replace any debt securities that become mutilated, destroyed,
stolen or lost at the expense of the holder upon delivery to the
trustee of the mutilated debt securities or evidence of the
loss, theft or destruction satisfactory to us and the trustee.
In the case of a lost, stolen or destroyed debt security,
indemnity satisfactory to the trustee and us may be required at
the expense of the holder of the debt securities before a
replacement debt security will be issued.
Book-Entry Debt Securities.
The debt
securities of a series may be issued in the form of one or more
global debt securities that would be deposited with a depositary
or its nominee identified in the prospectus supplement. Global
debt securities may be issued in either temporary or permanent
form. We will describe in the prospectus supplement the terms of
any depositary arrangement and the rights and limitations of
owners of beneficial interests in any global debt security.
Provisions
applicable solely to subordinated debt securities
Subordination.
Under the subordinated
indenture, payment of the principal of and any premium and
interest on the subordinated debt securities will generally be
subordinated and junior in right of payment to the prior payment
in full of all Senior Debt, as described below. Unless we inform
you otherwise in the prospectus supplement, we may not make any
payment of principal of or any premium or interest on the
subordinated debt securities if we fail to pay the principal,
interest, premium or any other amounts on any Senior Debt when
due.
The subordination does not affect our obligation, which is
absolute and unconditional, to pay, when due, the principal of
and any premium and interest on the subordinated debt
securities. In addition, the subordination does not prevent the
occurrence of any default under the subordinated indenture.
The subordinated indenture does not limit the amount of Senior
Debt that we may incur. As a result of the subordination of the
subordinated debt securities, if we become insolvent, holders of
subordinated debt securities may receive less on a proportionate
basis than other creditors.
Unless we inform you otherwise in a prospectus supplement,
Senior Debt will mean all debt, including
guarantees, of ours, unless the debt states that it is not
senior to the subordinated debt securities or our other junior
debt. Senior Debt with respect to a series of subordinated debt
securities could include other series of debt securities issued
under a subordinated indenture.
Guarantee
The Subsidiary Guarantors may fully and unconditionally
guarantee on an unsecured basis the full and prompt payment of
the principal of and any premium and interest on the debt
securities issued by us when and as the payment becomes due and
payable, whether at maturity or otherwise. The guarantee
provides that in the event of a default in the payment of
principal of or any premium or interest on a debt security, the
holder of that debt security may institute legal proceedings
directly against the applicable Subsidiary Guarantor to enforce
the guarantee without first proceeding against us. If senior
debt securities are so guaranteed, the guarantee will rank
equally with all of the Subsidiary Guarantors other
unsecured and unsubordinated debt from time to time outstanding
and senior to any subordinated debt of the Subsidiary Guarantor.
If subordinated debt securities are so guaranteed, the guarantee
will be subordinated to all of the Subsidiary Guarantors
other unsecured and unsubordinated debt from time to time
outstanding.
The obligations of any Subsidiary Guarantor under the guarantee
will be limited to the maximum amount that will not result in
the obligations of the Subsidiary Guarantor under the guarantee
constituting a fraudulent conveyance or fraudulent transfer
under federal or state law, after giving effect to any other
contingent and fixed liabilities of the Subsidiary Guarantor.
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The guarantee may be released under certain circumstances. If we
exercise our legal or covenant defeasance option with respect to
debt securities of a particular series as described above in
Defeasance, then any Subsidiary
Guarantor will be released with respect to that series. Further,
if no default has occurred and is continuing under the
indentures, and to the extent not otherwise prohibited by the
indentures, any Subsidiary Guarantor will be unconditionally
released and discharged from the guarantee:
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automatically upon any sale, exchange or transfer, whether by
way of merger or otherwise, to any person that is not our
affiliate, of all of our equity interests in the Subsidiary
Guarantor;
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automatically upon the merger of the Subsidiary Guarantor into
us or any other Subsidiary Guarantor or the liquidation and
dissolution of the Subsidiary Guarantor; or
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following delivery of a written notice by us to the trustee,
upon the release of all guarantees by the Subsidiary Guarantor
of any debt of ours for borrowed money, except for any series of
debt securities.
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DESCRIPTION
OF CAPITAL STOCK
The description of our capital stock in this section is a
summary and is not intended to be complete. For a complete
description of our capital stock, please read our amended and
restated articles of incorporation and our amended and restated
bylaws, which have been filed with the SEC.
General
Our authorized capital stock consists of
(1) 40,000,000 shares of common stock, par value $0.01
per share, and (2) 10,000,000 shares of preferred
stock, par value $0.01 per share. Approximately
30,628,724 shares of our common stock and no shares of
preferred stock were outstanding as of May 1, 2008.
Our board of directors has approved a resolution to amend our
amended and restated articles of incorporation to increase
(1) the total number of shares of all classes of stock
which the Company will have authority to issue from 50,000,000
to 100,000,000 and (2) the number of authorized shares of
Common Stock from 40,000,000 to 90,000,000. This matter will be
submitted to the vote of our shareholders at our 2008 annual
meeting of shareholders.
Common
Stock
The holders of our common stock are entitled to one vote per
share on all matters on which shareholders are permitted to
vote. The holders of our common stock have no preemptive rights
to purchase or subscribe for our securities, and our common
stock is not convertible or subject to redemption by us.
Subject to the rights of the holders of any class of our capital
stock having any preference or priority over our common stock,
the holders of our common stock are entitled to dividends in
such amounts as may be declared by our board of directors from
time to time out of funds legally available for such payments
and, if we are liquidated, dissolved or wound up, to a ratable
share of any distribution to shareholders, after satisfaction of
all our liabilities and the prior rights of any outstanding
class of our preferred stock.
American Stock Transfer & Trust Company is the
registrar and transfer agent for our common stock. Our common
stock is listed on the Nasdaq Global Select Market under the
symbol CRZO.
Preferred
Stock
Our board of directors has the authority, without shareholder
approval, to issue shares of preferred stock in one or more
series, and to fix the number and terms of each such series. We
have no present plan to issue shares of preferred stock.
The prospectus supplement relating to any series of preferred
stock we are offering will include specific terms relating to
the offering and the name of any transfer agent for that series.
We will file the form of the preferred stock with the SEC before
we issue any of it, and you should read it for provisions that
may be important to you. The prospectus supplement will include
some or all of the following terms:
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the title of the preferred stock;
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the maximum number of shares of the series;
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the dividend rate or the method of calculating the dividend, the
date from which dividends will accrue and whether dividends will
be cumulative;
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any liquidation preference;
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any optional redemption provisions;
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any sinking fund or other provisions that would obligate us to
redeem or purchase the preferred stock;
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any terms for the conversion or exchange of the preferred stock
for other securities of us or any other entity;
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any voting rights; and
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any other preferences and relative, participating, optional or
other special rights or any qualifications, limitations or
restrictions on the rights of the shares.
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The issuance of shares of preferred stock could adversely affect
the voting power of holders of our common stock, discourage an
unsolicited acquisition proposal or make it more difficult for a
third party to gain control of the Company. For instance, the
issuance of a series of preferred stock might impede a business
combination by including class voting rights that would enable
the holder to block such a transaction or facilitate a business
combination by including voting rights that would provide a
required percentage vote of the shareholders. Although our board
of directors is required to make any determination to issue
preferred stock based on its judgment as to the best interests
of our shareholders, the board could act in a manner that would
discourage an acquisition attempt or other transaction that some
of the shareholders might believe to be in their best interests
or in which shareholders might receive a premium for their stock
over the then market price of the stock. Our board of directors
does not presently intend to seek shareholder approval prior to
any issuance of currently authorized stock unless otherwise
required by law or the rules of the Nasdaq Global Select Market.
Special
Meetings
Our articles of incorporation provide that special meetings of
our shareholders may be called only by the chairman of our board
of directors, our president, a majority of our board of
directors or by shareholders holding not less than 50% of our
outstanding voting stock.
Voting
Our common stock does not have cumulative voting rights.
Accordingly, holders of a majority of the total votes entitled
to vote in an election of directors will be able to elect all of
the directors.
Our articles of incorporation or Texas law requires the
affirmative vote of holders of:
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66
2
/
3
%
of the outstanding shares entitled to vote on the matter to
approve any merger, consolidation or share exchange, any
dissolution of the Company or certain dispositions of all or
substantially all of our assets in which we do not continue to
engage in a business or apply a portion of the consideration
received in connection with the transaction to the conduct of a
business in which we engage following the transaction; and
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a majority of the outstanding shares entitled to vote on the
matter to approve any amendment to our articles of incorporation
or any other matter for which a shareholder vote is required by
the Texas Business Corporation Act. If any class or series of
shares is entitled to vote as a class with regard to these
events, the vote required will be the affirmative vote of the
holders of a majority of the outstanding shares within each
class or series of shares entitled to vote thereon as a class
and at least a majority of the outstanding shares of capital
stock otherwise entitled to vote thereon.
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Our bylaws provide that shareholders who wish to nominate
directors or to bring business before a shareholders
meeting must notify us and provide pertinent information at
least 80 days before the meeting date, or within
10 days after public announcement pursuant to our bylaws of
the meeting date, if the meeting date has not been publicly
announced at least 90 days in advance.
Our articles of incorporation and bylaws provide that no
director may be removed from office except for cause and upon
the affirmative vote of the holders of a majority of the votes
entitled to be cast in the election of our directors. The
following events constitute cause:
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the director has been convicted, or is granted immunity to
testify where another has been convicted, of a felony;
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the director has been found by a court or by the affirmative
vote of a majority of all other directors to be grossly
negligent or guilty of willful misconduct in the performance of
duties to us;
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the director is adjudicated mentally incompetent; or
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26
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the director has been found by a court or by the affirmative
vote of a majority of all other directors to have breached his
duty of loyalty to us or our shareholders or to have engaged in
a transaction with us from which the director derived an
improper personal benefit.
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Business
Combination Law
We are subject to Part Thirteen (the Business
Combination Law) of the Texas Business Corporation Act. In
general, the Business Combination Law prevents an
affiliated shareholder or its affiliates or
associates from entering into or engaging in a business
combination with an issuing public corporation
during the three-year period immediately following the
affiliated shareholders acquisition of shares unless:
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before the date the person became an affiliated shareholder, the
board of directors of the issuing public corporation approved
the business combination or the acquisition of shares made by
the affiliated shareholder on that date; or
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not less than six months after the date the person became an
affiliated shareholder, the business combination is approved by
the affirmative vote of holders of at least two-thirds of the
issuing public corporations outstanding voting shares not
beneficially owned by the affiliated shareholder or its
affiliates or associates.
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For the purposes of the Business Combination Law, an
affiliated shareholder is defined generally as a
person who is or was within the preceding three-year period the
beneficial owner of 20% or more of a corporations
outstanding voting shares. A business combination is
defined generally to include:
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mergers or share exchanges;
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dispositions of assets having an aggregate value equal to 10% or
more of the market value of the assets or of the outstanding
common stock representing 10% or more of the earning power or
net income of the corporation;
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certain issuances or transaction by the corporation that would
increase the affiliated shareholders number of shares of
the corporation;
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certain liquidations or dissolutions; and
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the receipt of tax, guarantee, loan or other financial benefits
by an affiliated shareholder of the corporation.
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An issuing public corporation is defined generally
as a Texas corporation with 100 or more shareholders, any voting
shares registered under the Securities Exchange Act of 1934, as
amended (the Exchange Act), or any voting shares
qualified for trading in a national market system.
The Business Combination Law does not apply to a business
combination of an issuing public corporation that elects not be
governed thereby through either its original articles of
incorporation or bylaws or by an amendment thereof. Our articles
of incorporation and bylaws do not so provide, nor do we
currently intend to make any such amendments.
In discharging the duties of a director under Texas law, a
director, in considering the best interests of the Company, may
consider the long-term as well as the short-term interests of
the Company and our shareholders, including the possibility that
those interests may be best served by our continued independence.
Limitation
of Director Liability and Indemnification Arrangements
Our articles of incorporation contain a provision that limits
the liability of our directors as permitted by the Texas
Business Corporation Act. The provision eliminates the personal
liability of a director to us and our shareholders for monetary
damages for an act or omission in the directors capacity
as a director. The provision does not change the liability of a
director for breach of his duty of loyalty to us or to our
shareholders, for an act or omission not in good faith that
involves intentional misconduct or a knowing violation of law,
for an act or omission for which the liability of a director is
expressly provided for by an
27
applicable statute, or in respect of any transaction from which
a director received an improper personal benefit. Pursuant to
our articles of incorporation, the liability of directors will
be further limited or eliminated without action by shareholders
if Texas law is amended to further limit or eliminate the
personal liability of directors.
Our bylaws provide for the indemnification of our officers and
directors, and the advancement to them of expenses in connection
with proceedings and claims, to the fullest extent permitted by
the Texas Business Corporation Act. We have also entered into
indemnification agreements with each of our directors and some
of our officers that contractually provide for indemnification
and expense advancement and include related provisions meant to
facilitate the indemnitees receipt of such benefits. In
addition, we have purchased directors, and officers
liability insurance policies for our directors and officers in
the future. Our bylaws and these agreements with directors and
officers provide for indemnification for amounts:
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in respect of the deductibles for these insurance policies;
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that exceed the liability limits of our insurance
policies; and
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that are available, were available or become available to us or
are generally available to companies comparable to us but which
our officers or directors determine is inadvisable for us to
purchase, given the cost.
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Such indemnification may be made even though our directors and
officer would not otherwise be entitled to indemnification under
other provisions of our bylaws or these agreements.
28
DESCRIPTION
OF WARRANTS
We may issue warrants to purchase debt securities, common stock,
preferred stock, rights or other securities of the Company or
any other entity or any combination of the foregoing. We may
issue warrants independently or together with other securities.
Warrants sold with other securities may be attached to or
separate from the other securities. We will issue warrants under
one or more warrant agreements between us and a warrant agent
that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants we are
offering will include specific terms relating to the offering.
We will file the form of any warrant agreement with the SEC, and
you should read the warrant agreement for provisions that may be
important to you. The prospectus supplement will include some or
all of the following terms:
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the title of the warrants;
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the aggregate number of warrants offered;
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the designation, number and terms of the debt securities, common
stock, preferred stock, rights or other securities purchasable
upon exercise of the warrants, and procedures by which the
number of securities purchasable may be adjusted;
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the exercise price of the warrants;
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the dates or periods during which the warrants are exercisable;
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the designation and terms of any securities with which the
warrants are issued;
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if the warrants are issued as a unit with another security, the
date, if any, on and after which the warrants and the other
security will be separately transferable;
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if the exercise price is not payable in U.S. dollars, the
foreign currency, currency unit or composite currency in which
the exercise price is denominated;
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any minimum or maximum amount of warrants that may be exercised
at any one time; and
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any terms, procedures and limitations relating to the
transferability, exchange or exercise of the warrants.
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29
PLAN OF
DISTRIBUTION
We may sell the securities in and outside the United States
through underwriters or dealers, directly to purchasers or
through agents. The prospectus supplement will include the
following information:
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the terms of the offering;
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the names of any underwriters or agents;
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the purchase price of the securities from us and, if the
purchase price is not payable in U.S. dollars, the currency
or composite currency in which the purchase price is payable;
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the net proceeds to us from the sale of the securities;
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any delayed delivery arrangements;
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any underwriting discounts, commissions and other items
constituting underwriters compensation;
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the initial public offering price;
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any discounts or concessions allowed or reallowed or paid to
dealers; and
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any commissions paid to agents.
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Sale
Through Underwriters or Dealers
If we use underwriters in the sale of securities, the
underwriters will acquire the securities for their own account.
The underwriters may resell the securities from time to time in
one or more transactions, including negotiated transactions, at
a fixed public offering price or at varying prices determined at
the time of sale. Underwriters may offer securities to the
public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more firms
acting as underwriters. Unless we inform you otherwise in the
prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to conditions, and the
underwriters will be obligated to purchase all the securities if
they purchase any of them. The underwriters may change from time
to time any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers.
During and after an offering through underwriters, the
underwriters may purchase and sell the securities in the open
market. These transactions may include overallotment and
stabilizing transactions and purchases to cover syndicate short
positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling
concessions allowed to syndicate members or other broker-dealers
for the offered securities sold for their account may be
reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or
otherwise affect the market price of the offered securities,
which may be higher than the price that might otherwise prevail
in the open market. If commenced, these activities may be
discontinued at any time.
If we use dealers in the sale of securities, we will sell the
securities to them as principals. They may then resell those
securities to the public at varying prices determined by the
dealers at the time of resale. The dealers participating in any
sale of the securities may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale of
those securities. We will include in the prospectus supplement
the names of the dealers and the terms of the transaction.
Direct
Sales and Sales Through Agents
We may sell the securities directly. In that event, no
underwriters or agents would be involved. We may also sell the
securities through agents we designate from time to time. In the
prospectus supplement, we will name any agent involved in the
offer or sale of the securities, and we will describe any
commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to
use its reasonable best efforts to solicit purchases for the
period of its appointment.
30
We may sell the securities directly to institutional investors
or others who may be deemed to be underwriters within the
meaning of the Securities Act with respect to any sale of those
securities. We will describe the terms of any such sales in the
prospectus supplement.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize
agents, underwriters or dealers to solicit offers from certain
types of institutions to purchase securities from us at the
public offering price under delayed delivery contracts. These
contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those
conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for
solicitation of those contracts.
Remarketing
We may offer and sell any of the securities in connection with a
remarketing upon their purchase, in accordance with a redemption
or repayment by their terms or otherwise, by one or more
remarketing firms acting as principals for their own accounts or
as our agents. We will identify any remarketing firm, the terms
of any remarketing agreement and the compensation to be paid to
the remarketing firm in the prospectus supplement. Remarketing
firms may be deemed underwriters under the Securities Act.
Derivative
Transactions
We may enter into derivative transactions with third parties, or
sell securities not covered by this prospectus to third parties
in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those
derivatives, the third parties may sell securities covered by
this prospectus and the applicable prospectus supplement,
including in short sale transactions. If so, the third parties
may use securities pledged by us or borrowed from us or others
to settle those sales or to close out any related open
borrowings of stock, and may use securities received from us in
settlement of those derivatives to close out any related open
borrowings of stock.
We or one of our affiliates may loan or pledge securities to a
financial institution or other third party that in turn may sell
the securities using this prospectus. Such financial institution
or third party may transfer its short position to investors in
our securities or in connection with a simultaneous offering of
other securities offered by this prospectus or otherwise.
The third parties in any of the sale transactions described
above will be underwriters and will be identified in the
applicable prospectus supplement or in a post-effective
amendment to the registration statement of which this prospectus
forms a part.
General
Information
We may have agreements with the agents, dealers and underwriters
to indemnify them against civil liabilities, including
liabilities under the Securities Act, or to contribute with
respect to payments that the agents, dealers or underwriters may
be required to make. Agents, dealers and underwriters may engage
in transactions with us or perform services for us in the
ordinary course of their businesses.
The securities may or may not be listed on a national securities
exchange. We cannot assure you that there will be a market for
the securities.
31
LEGAL
MATTERS
The validity of the offered securities and other matters in
connection with any offering of the securities will be passed
upon for us by Baker Botts L.L.P., Houston, Texas, our outside
counsel. Certain other legal matters in connection with any
offering of the securities will be passed upon for us by
Gerald A. Morton, our General Counsel and Vice
President Business Development. Any underwriters
will be advised about legal matters relating to any offering by
their own legal counsel, which will be named in the related
prospectus supplement.
EXPERTS
Our consolidated financial statements for the years ended
December 31, 2005, 2006 and 2007 and, with respect to the
years ended December 31, 2005 and 2006, managements
assessment of the effectiveness of internal control over
financial reporting (which is included in Managements
Report on Internal Control of Financial Reporting) as of
December 31, 2005 and 2006, and the effectiveness of
internal control over financial reporting as of
December 31, 2007, incorporated by reference in this
prospectus and registration statement, have been audited by
Pannell Kerr Forster of Texas, P.C., independent registered
public accounting firm, to the extent indicated in their reports
thereon also incorporated by reference. Such consolidated
financial statements and managements assessment of the
effectiveness of internal control over financial reporting have
been so incorporated herein by reference in reliance on such
reports given on the authority of said firm as experts in
accounting and auditing.
The letter reports of Ryder Scott Company, Fairchild &
Wells, Inc. and LaRoche Petroleum Consultants, Ltd., each
independent consulting petroleum engineers, and certain
information with respect to our oil and gas reserves derived
from such reports and certain information with respect to our
oil and gas reserves derived from the reports of DeGolyer and
MacNaughton, independent consulting petroleum engineers, have
been incorporated by reference into this prospectus upon the
authority of each such firm as experts with respect to such
matters covered in such reports and in giving such reports.
WHERE YOU
CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. You may read and copy this
registration statement and any other documents we file at the
SECs Public Reference Room at 100 F Street,
N.E., Room 1580, Washington, D.C. 20549. Please call
the SEC at
1-800-SEC-0330
for further information on the Public Reference Room. Our SEC
filings are also available to the public at the SECs
Internet site at
http://www.sec.gov
and our website at
http://www.crzo.net.
Copies of these reports, proxy statements and other information
concerning us can also be inspected at the offices of the Nasdaq
Stock Market, Inc., which are located at 1735 K Street
N.W., Washington, D.C. 20006. Information on our website or
any other website is not incorporated by reference in this
prospectus and does not constitute part of this prospectus.
This prospectus is part of a registration statement and, as
permitted by SEC rules, does not contain all of the information
included in the registration statement. Whenever a reference is
made in this prospectus or any prospectus supplement to any of
our contracts or other documents, the reference may not be
complete and, for a copy of the contract or document, you should
refer to the exhibits that are part of or incorporated by
reference into the registration statement.
The SEC allows us to incorporate by reference into
this prospectus the information we file with it, which means
that we can disclose important information to you by referring
you to those documents. Information incorporated by reference is
considered to be part of this prospectus. Any statement
contained in this prospectus or a document incorporated by
reference in this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any other
subsequently filed document that is incorporated by reference in
this prospectus modifies or superseded the statement. Any
statement so modified or superseded will not be deemed, except
as so modified or superseded, to constitute a part of this
prospectus. We incorporate by reference the documents listed
below and future filings we make with the SEC under
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
(excluding
32
any information furnished but not filed,
unless we specifically provide that such furnished
information is to be incorporated by reference) after the
effectiveness of this registration statement and until the
termination of offerings under this prospectus:
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our annual report on
Form 10-K
for the year ended December 31, 2007;
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our current reports on
Form 8-K
filed on January 3, 2008, January 31, 2008,
February 11, 2008 (excluding Item 2.02 and the related
exhibit), February 14, 2008 (excluding Item 7.01 and
the related exhibit) and May 21, 2008 (excluding
Item 7.01 and the related exhibit);
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our quarterly report on
Form 10-Q
for the quarter ended March 31, 2008, as amended by our
quarterly report on
Form 10-Q/A
for the quarter ended March 31, 2008; and
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the description of our common stock in our Registration
Statement on
Form 8-A
(Registration
No. 000-22915)
filed on July 31, 1997.
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We will provide a copy of any and all of the information that is
incorporated by reference in this prospectus to any person,
including a beneficial owner, to whom a prospectus is delivered,
without charge, upon written or oral request. You may obtain a
copy of these filings by writing or telephoning:
Carrizo Oil & Gas, Inc.
Attention: Investor Relations
1000 Louisiana Street, Suite 1500
Houston, Texas 77002
(713) 328-1000.
33
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 14.
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Other
Expenses of Issuance and Distribution
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All expenses in connection with the offering described in this
registration statement will be paid by us. Such expenses are
estimated as follows:*
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SEC registration fee
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$
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*
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Printing expenses
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50,000
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Accounting fees and expenses
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5,000
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Legal fees and expenses
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35,000
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Trustee fees and expenses
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20,000
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Rating agency fees and expenses
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225,000
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Miscellaneous
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65,000
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Total
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$
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400,000
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*
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To be deferred pursuant to Rule 456(b) and calculated in
connection with the offering of securities under this
registration statement pursuant to Rule 457(r).
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Item 15.
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Indemnification
of Directors and Officers.
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Limitation
of Director Liability and Indemnification Arrangements
Our articles of incorporation contain a provision that limits
the liability of our directors as permitted by the Texas
Business Corporation Act. The provision eliminates the personal
liability of a director to us and our shareholders for monetary
damages for an act or omission in the directors capacity
as a director. The provision does not change the liability of a
director for breach of his duty of loyalty to us or to our
shareholders, for an act or omission not in good faith that
involves intentional misconduct or a knowing violation of law,
for an act or omission for which the liability of a director is
expressly provided for by an applicable statute, or in respect
of any transaction from which a director received an improper
personal benefit. Pursuant to our articles of incorporation, the
liability of directors will be further limited or eliminated
without action by shareholders if Texas law is amended to
further limit or eliminate the personal liability of directors.
Our bylaws provide for the indemnification of our officers and
directors, and the advancement to them of expenses in connection
with proceedings and claims, to the fullest extent permitted by
the Texas Business Corporation Act. We have also entered into
indemnification agreements with each of our directors and some
of our officers that contractually provide for indemnification
and expense advancement and include related provisions meant to
facilitate the indemnitees receipt of such benefits.
We have purchased directors and officers liability
insurance policies for our directors and officers. In addition,
our bylaws and these agreements with directors and officers
provide for indemnification for amounts:
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in respect of the deductibles for these insurance policies;
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that exceed the liability limits of our insurance
policies; and
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in respect of these types of insurance policies that are
available, were available or become available to us or which are
generally available to companies comparable to us but which our
officers or directors determine is inadvisable for us to
purchase, given the cost involved.
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This type of indemnification relating to directors and
officers insurance may be made even though directors and
officers would not otherwise be entitled to indemnification
under other provisions of our bylaws or these agreements.
Delaware law permits a corporation to adopt a provision in its
certificate of incorporation eliminating or limiting the
personal liability of a director, but not an officer in his or
her capacity as such, to the corporation
II-1
or its stockholders for monetary damages for breach of fiduciary
duty as a director, except that such provision shall not
eliminate or limit the liability of a director for (1) any
breach of the directors duty of loyalty to the corporation
or its stockholders, (2) acts or omissions not in good
faith or which involve intentional misconduct or a knowing
violation of law, (3) liability under section 174 of
the Delaware General Corporation Law (the DGCL) for
unlawful payment of dividends or stock purchases or redemptions
or (4) any transaction from which the director derived an
improper personal benefit.
The certificate of incorporation and bylaws of each of CCBM,
Inc., CLLR, Inc. and Hondo Pipeline, Inc. authorize
indemnification of its officers and directors to the full extent
permitted by law.
Under Delaware law, a corporation may indemnify any person who
was or is a party or is threatened to be made a party to any
type of proceeding, other than an action by or in the right of
the corporation, because he or she is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation a director, officer,
employee or agent of another corporation or other entity,
against expenses, including attorneys fees, judgments,
fines and amounts paid in settlement actually and reasonably
incurred in connection with such proceeding if: (1) he or
she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the
corporation and (2) with respect to any criminal
proceeding, he or she had no reasonable cause to believe that
his or her conduct was unlawful. A corporation may indemnify any
person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit brought
by or in the right of the corporation because he or she is or
was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or
other entity, against expenses, including attorneys fees,
actually and reasonably incurred in connection with such action
or suit if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best
interests of the corporation, except that no indemnification
will be made if the person is found liable to the corporation
unless, in such a case, the court determines the person is
nonetheless entitled to indemnification for such expenses. A
corporation must also indemnify a present or former director or
officer has been successful on the merits or otherwise in
defense of any proceeding, or in defense of any claim, issue or
matter therein, against expenses, including attorneys
fees, actually and reasonably incurred by him or her. Expenses,
including attorneys fees, incurred by a director or
officer, or any employees or agents as deemed appropriate by the
board of directors, in defending civil or criminal proceedings
may be paid by the corporation in advance of the final
disposition of such proceedings upon receipt of an undertaking
by or on behalf of such director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he
or she is not entitled to be indemnified by the corporation. The
Delaware law regarding indemnification and the advancement of
expenses is not exclusive of any other rights a person may be
entitled to under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
Under the DGCL, the termination of any proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption
that a person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Delaware law also provides that a corporation may purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or other
entity, against any liability asserted against and incurred by
such person, whether or not the corporation would have the power
to indemnify such person against such liability.
II-2
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Exhibit
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Number
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Description
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2
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.1
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Combination Agreement by and among the Company, Carrizo
Production, Inc., Encinitas Partners Ltd., La Rosa Partners
Ltd., Carrizo Partners Ltd., Paul B. Loyd, Jr., Steven A.
Webster, S.P. Johnson IV, Douglas A.P. Hamilton and Frank
A. Wojtek dated as of September 6, 1997 (incorporated
herein by reference to Exhibit 2.1 to the Companys
Registration Statement on
Form S-1
(Registration
No. 333-29187)).
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3
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.1
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Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 1998).
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3
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.2
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|
|
Amended and Restated Bylaws of the Company, as amended by
Amendment No. 1 (incorporated herein by reference to
Exhibit 3.1 to the Companys Current Report on
Form 8-K
filed on January 3, 2008).
|
|
4
|
.3
|
|
|
|
Form of certificate representing Common Stock (incorporated by
reference to Exhibit 4.1 to the Companys Registration
Statement on
Form S-1
(Registration
No. 333-29187)).
|
|
4
|
.4
|
|
|
|
Certificate of Incorporation of CCBM, Inc. (incorporated by
reference to Exhibit 4.4 to the Companys Registration
Statement on
Form S-3
(Registration
No. 333-128215)).
|
|
4
|
.5
|
|
|
|
Bylaws of CCBM, Inc. (incorporated by reference to
Exhibit 4.5 to the Companys Registration Statement on
Form S-3
(Registration
No. 333-128215)).
|
|
4
|
.6*
|
|
|
|
Certificate of Incorporation of CLLR, Inc.
|
|
4
|
.7*
|
|
|
|
Bylaws of CLLR, Inc.
|
|
4
|
.8**
|
|
|
|
Form of indenture relating to the senior debt securities of the
Company.
|
|
4
|
.9**
|
|
|
|
Form of indenture relating to the subordinated debt securities
of the Company.
|
|
4
|
.10**
|
|
|
|
Certificate of Incorporation of Hondo Pipeline, Inc.
|
|
4
|
.11**
|
|
|
|
Bylaws of Hondo Pipeline, Inc.
|
|
5
|
.1**
|
|
|
|
Opinion of Baker Botts L.L.P.
|
|
12
|
.1**
|
|
|
|
Computation of ratio of earnings to fixed charges and earnings
to combined fixed charges and preferred stock dividends for each
of the years in the five-year period ended December 31,
2007 and for the three months ended March 31, 2008.
|
|
23
|
.1**
|
|
|
|
Consent of Pannell Kerr Forster of Texas, P.C.
|
|
23
|
.2**
|
|
|
|
Consent of Ryder Scott Company, L.P.
|
|
23
|
.3**
|
|
|
|
Consent of Fairchild & Wells, Inc.
|
|
23
|
.4**
|
|
|
|
Consent of LaRoche Petroleum Consultants, Ltd.
|
|
23
|
.5**
|
|
|
|
Consent of DeGolyer and MacNaughton.
|
|
23
|
.6**
|
|
|
|
Consent of Baker Botts L.L.P. (included in Exhibit 5.1)
|
|
24
|
.1*
|
|
|
|
Power of Attorney (included in signature page)
|
|
25
|
.1**
|
|
|
|
Form T-1
Statement of Eligibility of Trustee.
|
|
|
|
|
|
Incorporated by reference as indicated.
|
|
*
|
|
Previously filed.
|
|
**
|
|
Filed herewith.
|
We will file as an exhibit to a Current Report on
Form 8-K
(i) any underwriting, remarketing or agency agreement
relating to the securities offered hereby, (ii) the
instruments setting forth the terms of any debt securities,
preferred stock or warrants, (iii) any additional required
opinions of counsel with respect to legality of the securities
offered hereby or (iv) any required opinion of our counsel
as to certain tax matters relative to the securities offered
hereby.
II-3
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
provided, however
, that paragraphs (i), (ii) and
(iii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement, or
is contained in a form of prospectus filed pursuant to
Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under
the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
(B) Each prospectus required to be filed pursuant to
Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering
made pursuant to Rule 415(a)(1)(i), (vii) or
(x) for the purpose of providing the information required
by Section 10(a) of the Securities Act of 1933 shall be
deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first
used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus.
As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which the prospectus relates, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof. Provided, however, that
no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser
II-4
with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose of determining liability of the
Registrant under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities, the undersigned
Registrant undertakes that in a primary offering of securities
of the undersigned Registrant pursuant to this registration
statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered
or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(6) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plans annual report pursuant
to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(7) To file an application for the purpose of determining
the eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the
Trust Indenture Act.
(8) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the claim has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
of the registrants certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Houston, the State of Texas, on May 21, 2008.
CARRIZO OIL & GAS, INC.
CCBM, INC.
CLLR, INC.
HONDO PIPELINE, INC.
Name: Paul F. Boling
CARRIZO
OIL & GAS, INC.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on May 21, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
*
(S.P.
Johnson IV)
|
|
President, Chief Executive Officer and Director
(Principal Executive Officer)
|
|
|
|
/s/ Paul
F. Boling
(Paul
F. Boling)
|
|
Chief Financial Officer, Vice President, Secretary and Treasurer
(Principal Financial and Accounting Officer)
|
|
|
|
*
(Steven
A. Webster)
|
|
Chairman
|
|
|
|
*
(Thomas
L. Carter, Jr.)
|
|
Director
|
|
|
|
*
(Paul
B. Loyd, Jr.)
|
|
Director
|
|
|
|
*
(F.
Gardner Parker)
|
|
Director
|
|
|
|
*
(Roger
A. Ramsey)
|
|
Director
|
|
|
|
*
(Frank
A. Wojtek)
|
|
Director
|
|
|
|
/s/ Paul
F. Boling
*As
Attorney-in-fact
|
|
Pursuant to power of attorney included in the
Registration Statement
|
II-6
CCBM,
INC.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on May 21, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
*
(S.P.
Johnson IV)
|
|
President
(Principal Executive Officer)
|
|
|
|
/s/ Paul
F. Boling
(Paul
F. Boling)
|
|
Vice President
(Principal Financial and Accounting Officer)
|
|
|
|
*
(Steven
A. Webster)
|
|
Chairman
|
|
|
|
*
(Thomas
L. Carter, Jr.)
|
|
Director
|
|
|
|
*
(Paul
B. Loyd, Jr.)
|
|
Director
|
|
|
|
*
(F.
Gardner Parker)
|
|
Director
|
|
|
|
*
(Roger
A. Ramsey)
|
|
Director
|
|
|
|
*
(Frank
A. Wojtek)
|
|
Director
|
|
|
|
/s/ Paul
F. Boling
*As
Attorney-in-fact
|
|
Pursuant to power of attorney included in the
Registration Statement
|
II-7
CLLR,
INC.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on May 21, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
*
(S.P.
Johnson IV)
|
|
President
(Principal Executive Officer)
|
|
|
|
/s/ Paul
F. Boling
(Paul
F. Boling)
|
|
Vice President (Principal Financial
and Accounting Officer)
|
|
|
|
*
(Steven
A. Webster)
|
|
Chairman
|
|
|
|
*
(Thomas
L. Carter, Jr.)
|
|
Director
|
|
|
|
*
(Paul
B. Loyd, Jr.)
|
|
Director
|
|
|
|
*
(F.
Gardner Parker)
|
|
Director
|
|
|
|
*
(Roger
A. Ramsey)
|
|
Director
|
|
|
|
*
(Frank
A. Wojtek)
|
|
Director
|
|
|
|
/s/ Paul
F. Boling
*As
Attorney-in-fact
|
|
Pursuant to power of attorney included in the
Registration Statement
|
II-8
HONDO
PIPELINE, INC.
Each person whose signature appears below appoints Paul F.
Boling and S.P. Johnson IV and each of them, each of whom
may act without the joinder of the others, as his true and
lawful attorneys in fact and agents, will full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to file the same, with all exhibits
thereto and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said
attorneys in fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to
be done, as fully and for all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that
said attorneys in fact and agents or their substitute or
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on May 21, 2008.
|
|
|
|
|
Signature
|
|
Title
|
|
|
|
|
/s/ S.P.
Johnson IV
(S.P.
Johnson IV)
|
|
President (Principal Executive Officer)
|
|
|
|
/s/ Paul
F. Boling
(Paul
F. Boling)
|
|
Vice President (Principal Financial and
Accounting Officer)
|
|
|
|
/s/ Steven
A. Webster
(Steven
A. Webster)
|
|
Chairman
|
|
|
|
/s/ Thomas
L. Carter, Jr.
(Thomas
L. Carter, Jr.)
|
|
Director
|
|
|
|
/s/ Paul
B. Loyd, Jr.
(Paul
B. Loyd, Jr.)
|
|
Director
|
|
|
|
/s/ F.
Gardner Parker
(F.
Gardner Parker)
|
|
Director
|
|
|
|
/s/ Roger
A. Ramsey
(Roger
A. Ramsey)
|
|
Director
|
|
|
|
/s/ Frank
A. Wojtek
(Frank
A. Wojtek)
|
|
Director
|
II-9
EXHIBIT INDEX
|
|
|
|
|
|
|
Exhibit
|
|
|
|
|
Number
|
|
|
|
Description
|
|
|
2
|
.1
|
|
|
|
Combination Agreement by and among the Company, Carrizo
Production, Inc., Encinitas Partners Ltd., La Rosa Partners
Ltd., Carrizo Partners Ltd., Paul B. Loyd, Jr.,
Steven A. Webster, S.P. Johnson IV, Douglas A.P.
Hamilton and Frank A. Wojtek dated as of September 6, 1997
(incorporated herein by reference to Exhibit 2.1 to the
Companys Registration Statement on
Form S-1
(Registration
No. 333-29187)).
|
|
3
|
.1
|
|
|
|
Amended and Restated Articles of Incorporation of the Company
(incorporated herein by reference to Exhibit 3.1 to the
Companys Annual Report on
Form 10-K
for the year ended December 31, 1998).
|
|
3
|
.2
|
|
|
|
Amended and Restated Bylaws of the Company, as amended by
Amendment No. 1 (incorporated herein by reference to
Exhibit 3.1 to the Companys Current Report on
Form 8-K
filed on January 3, 2008).
|
|
4
|
.3
|
|
|
|
Form of certificate representing Common Stock (incorporated by
reference to Exhibit 4.1 to the Companys Registration
Statement on
Form S-1
(Registration
No. 333-29187)).
|
|
4
|
.4
|
|
|
|
Certificate of Incorporation of CCBM, Inc. (incorporated by
reference to Exhibit 4.4 to the Companys Registration
Statement on
Form S-3
(Registration
No. 333-128215)).
|
|
4
|
.5
|
|
|
|
Bylaws of CCBM, Inc. (incorporated by reference to
Exhibit 4.5 to the Companys Registration Statement on
Form S-3
(Registration
No. 333-128215)).
|
|
4
|
.6*
|
|
|
|
Certificate of Incorporation of CLLR, Inc.
|
|
4
|
.7*
|
|
|
|
Bylaws of CLLR, Inc.
|
|
4
|
.8**
|
|
|
|
Form of indenture relating to the senior debt securities of the
Company.
|
|
4
|
.9**
|
|
|
|
Form of indenture relating to the subordinated debt securities
of the Company.
|
|
4
|
.10**
|
|
|
|
Certificate of Incorporation of Hondo Pipeline, Inc.
|
|
4
|
.11**
|
|
|
|
Bylaws of Hondo Pipeline, Inc.
|
|
5
|
.1**
|
|
|
|
Opinion of Baker Botts L.L.P.
|
|
12
|
.1**
|
|
|
|
Computation of ratio of earnings to fixed charges and earnings
to combined fixed charges and preferred stock dividends for each
of the years in the five-year period ended December 31,
2007 and for the three months ended March 31, 2008.
|
|
23
|
.1**
|
|
|
|
Consent of Pannell Kerr Forster of Texas, P.C.
|
|
23
|
.2**
|
|
|
|
Consent of Ryder Scott Company, L.P.
|
|
23
|
.3**
|
|
|
|
Consent of Fairchild & Wells, Inc.
|
|
23
|
.4**
|
|
|
|
Consent of LaRoche Petroleum Consultants, Ltd.
|
|
23
|
.5**
|
|
|
|
Consent of DeGolyer and MacNaughton.
|
|
23
|
.6**
|
|
|
|
Consent of Baker Botts L.L.P. (included in Exhibit 5.1)
|
|
24
|
.1*
|
|
|
|
Power of Attorney (included in signature page)
|
|
25
|
.1**
|
|
|
|
Form T-1
Statement of Eligibility of Trustee.
|
|
|
|
|
|
Incorporated by reference as indicated.
|
|
*
|
|
Previously filed.
|
|
**
|
|
Filed herewith.
|
We will file as an exhibit to a Current Report on
Form 8-K
(i) any underwriting, remarketing or agency agreement
relating to the securities offered hereby, (ii) the
instruments setting forth the terms of any debt securities,
preferred stock or warrants, (iii) any additional required
opinions of counsel with respect to legality of the securities
offered hereby or (iv) any required opinion of our counsel
as to certain tax matters relative to the securities offered
hereby.
EXHIBIT 4.8
FORM OF SENIOR INDENTURE
CARRIZO OIL & GAS, INC.
as Issuer
and
THE POTENTIAL SUBSIDIARY GUARANTORS
LISTED ON THE SIGNATURE PAGES HERETO
as Potential Subsidiary Guarantors
and
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of ___, ___
Debt Securities
CARRIZO OIL & GAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ___ ___, ___
|
|
|
|
|
Section of
|
|
|
Trust Indenture
|
|
Section(s) of
|
Act of 1939
|
|
Indenture
|
|
§ 310
|
(a)(1)
|
|
7.10
|
|
|
(a)(2)
|
|
7.10
|
|
|
(a)(3)
|
|
Not Applicable
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
(a)(5)
|
|
7.10
|
|
|
(b)
|
|
7.08, 7.10
|
|
§ 311
|
(a)
|
|
7.11
|
|
|
(b)
|
|
7.11
|
|
|
(c)
|
|
Not Applicable
|
|
§ 312
|
(a)
|
|
2.07
|
|
|
(b)
|
|
11.03
|
|
|
(c)
|
|
11.03
|
|
§ 313
|
(a)
|
|
7.06
|
|
|
(b)
|
|
7.06
|
|
|
(c)
|
|
7.06
|
|
|
(d)
|
|
7.06
|
|
§ 314
|
(a)
|
|
4.03, 4.04
|
|
|
(b)
|
|
Not Applicable
|
|
|
(c)(1)
|
|
11.04
|
|
|
(c)(2)
|
|
11.04
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
(d)
|
|
Not Applicable
|
|
|
(e)
|
|
11.05
|
|
§ 315
|
(a)
|
|
7.01(b)
|
|
|
(b)
|
|
7.05
|
|
|
(c)
|
|
7.01(a)
|
|
|
(d)
|
|
7.01(c)
|
|
|
(d)(1)
|
|
7.01(c)(1)
|
|
|
(d)(2)
|
|
7.01(c)(2)
|
|
|
(d)(3)
|
|
7.01(c)(3)
|
|
|
(e)
|
|
6.11
|
|
§ 316
|
(a)(1)(A)
|
|
6.05
|
|
|
(a)(1)(B)
|
|
6.04
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
(a)(last sentence)
|
|
2.11
|
|
|
(b)
|
|
6.07
|
|
§ 317
|
(a)(1)
|
|
6.08
|
|
|
(a)(2)
|
|
6.09
|
|
|
(b)
|
|
2.06
|
|
§ 318
|
(a)
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11.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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SECTION 1.01 Definitions
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1
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SECTION 1.02 Other Definitions
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6
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SECTION 1.03 Incorporation by Reference of Trust Indenture Act
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6
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SECTION 1.04 Rules of Construction
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7
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ARTICLE II THE SECURITIES
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7
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SECTION 2.01 Amount Unlimited; Issuable in Series
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7
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SECTION 2.02 Denominations
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10
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SECTION 2.03 Forms Generally
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10
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SECTION 2.04 Execution, Authentication, Delivery and Dating
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11
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SECTION 2.05 Registrar and Paying Agent
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13
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SECTION 2.06 Paying Agent to Hold Money in Trust
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13
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SECTION 2.07 Holder Lists
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13
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SECTION 2.08 Transfer and Exchange
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14
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SECTION 2.09 Replacement Securities
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14
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SECTION 2.10 Outstanding Securities
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15
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SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities
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15
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SECTION 2.12 Temporary Securities
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15
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SECTION 2.13 Cancellation
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16
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SECTION 2.14 Payments; Defaulted Interest
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16
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SECTION 2.15 Persons Deemed Owners
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16
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SECTION 2.16 Computation of Interest
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17
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SECTION 2.17 Global Securities; Book-Entry Provisions
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17
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ARTICLE III REDEMPTION
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19
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SECTION 3.01 Applicability of Article
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19
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SECTION 3.02 Notice to the Trustee
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19
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SECTION 3.03 Selection of Securities To Be Redeemed
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19
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SECTION 3.04 Notice of Redemption
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20
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SECTION 3.05 Effect of Notice of Redemption
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21
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SECTION 3.06 Deposit of Redemption Price
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21
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SECTION 3.07 Securities Redeemed or Purchased in Part
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21
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SECTION 3.08 Purchase of Securities
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21
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SECTION 3.09 Mandatory and Optional Sinking Funds
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22
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SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities
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22
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SECTION 3.11 Redemption of Securities for Sinking Fund
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22
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ARTICLE IV COVENANTS
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23
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SECTION 4.01 Payment of Securities
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23
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i
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Page
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SECTION 4.02 Maintenance of Office or Agency
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23
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SECTION 4.03 SEC Reports; Financial Statements
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24
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SECTION 4.04 Compliance Certificate
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24
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SECTION 4.05 Corporate Existence
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25
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SECTION 4.06 Waiver of Stay, Extension or Usury Laws
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25
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SECTION 4.07 Additional Amounts
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25
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ARTICLE V SUCCESSORS
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26
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SECTION 5.01 Limitations on Mergers and Consolidations
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26
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SECTION 5.02 Successor Person Substituted
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26
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ARTICLE VI DEFAULTS AND REMEDIES
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27
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SECTION 6.01 Events of Default
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27
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SECTION 6.02 Acceleration
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29
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SECTION 6.03 Other Remedies
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29
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SECTION 6.04 Waiver of Defaults
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30
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SECTION 6.05 Control by Majority
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30
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SECTION 6.06 Limitations on Suits
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30
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SECTION 6.07 Rights of Holders to Receive Payment
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31
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SECTION 6.08 Collection Suit by Trustee
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31
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SECTION 6.09 Trustee May File Proofs of Claim
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31
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SECTION 6.10 Priorities
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32
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SECTION 6.11 Undertaking for Costs
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33
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ARTICLE VII TRUSTEE
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33
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SECTION 7.01 Duties of Trustee
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33
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SECTION 7.02 Rights of Trustee
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34
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SECTION 7.03 May Hold Securities
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34
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SECTION 7.04 Trustees Disclaimer
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35
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SECTION 7.05 Notice of Defaults
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35
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SECTION 7.06 Reports by Trustee to Holders
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35
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SECTION 7.07 Compensation and Indemnity
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35
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SECTION 7.08 Replacement of Trustee
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36
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SECTION 7.09 Successor Trustee by Merger, etc.
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38
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SECTION 7.10 Eligibility; Disqualification
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38
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SECTION 7.11 Preferential Collection of Claims Against the Company or the
Subsidiary Guarantor
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38
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ARTICLE VIII DISCHARGE OF INDENTURE
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39
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SECTION 8.01 Termination of the Companys and the Subsidiary Guarantors Obligations
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39
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SECTION 8.02 Application of Trust Money
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42
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SECTION 8.03 Repayment to Company
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43
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SECTION 8.04 Reinstatement
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43
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ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS
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43
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SECTION 9.01 Without Consent of Holders
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43
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ii
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Page
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SECTION 9.02 With Consent of Holders
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45
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SECTION 9.03 Compliance with Trust Indenture Act
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47
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SECTION 9.04 Revocation and Effect of Consents
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47
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SECTION 9.05 Notation on or Exchange of Securities
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47
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SECTION 9.06 Trustee to Sign Amendments, etc.
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48
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ARTICLE X GUARANTEE
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48
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SECTION 10.01 Guarantee
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48
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SECTION 10.02 Execution and Delivery of Guarantee
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50
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SECTION 10.03 Limitation on Liability of the Subsidiary Guarantor
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50
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SECTION 10.04 Release of Subsidiary Guarantor from Guarantee
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51
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ARTICLE XI MISCELLANEOUS
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51
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SECTION 11.01 Trust Indenture Act Controls
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51
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SECTION 11.02 Notices
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52
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SECTION 11.03 Communication by Holders with Other Holders
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53
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SECTION 11.04 Certificate and Opinion as to Conditions Precedent
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53
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SECTION 11.05 Statements Required in Certificate or Opinion
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53
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SECTION 11.06 Rules by Trustee and Agents
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54
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SECTION 11.07 Legal Holidays
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54
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SECTION 11.08 No Recourse Against Others
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54
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SECTION 11.09 Governing Law
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54
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SECTION 11.10 No Adverse Interpretation of Other Agreements
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54
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SECTION 11.11 Successors
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54
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SECTION 11.12 Severability
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54
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SECTION 11.13 Counterpart Originals
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55
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SECTION 11.14 Table of Contents, Headings, etc.
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55
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iii
INDENTURE
dated as of ___ ___, ___ between Carrizo Oil & Gas, Inc., a Texas corporation
(the Company), the potential subsidiary guarantors listed on the signature pages hereto (the
Potential Subsidiary Guarantors), and Wells Fargo Bank, National Association, as trustee (the
Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Companys unsecured debentures, notes or other evidences of
indebtedness (the Securities), and the related Guarantees (as hereinafter defined), to be issued
from time to time in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01
Definitions.
Additional Amounts means any additional amounts required by the express terms of a Security
or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto,
to be paid by the Company with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, such specified Person. For
purposes of this definition, control of a Person shall mean 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 shall have
meanings correlative to the foregoing.
Agent means any Registrar or Paying Agent.
Bankruptcy Law means Title 11 of the United States Code or any similar federal, state or
foreign law for the relief of debtors.
Board of Directors means the Board of Directors of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors
of the Company.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day means any day that is not a Legal Holiday.
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person;
provided, however,
that for
purposes of any provision contained herein which is required by the TIA, Company shall also mean
each other obligor (if any) on the Securities of a series.
1
Company Order and Company Request mean, respectively, a written order or request signed in
the name of the Company by two Officers of the Company, and delivered to the Trustee.
Corporate Trust Office of the Trustee means the office of the Trustee located at 1445 Ross
Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202, Attention: Patrick Giordano, and as may be
located at such other address as the Trustee may give notice to the Company.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial
Depositary with respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
Depositary shall mean or include such successor.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debt.
Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
GAAP means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States, as in effect from time to
time.
Global Security means a Security that is issued in global form in the name of the Depositary
with respect thereto or its nominee.
Government Obligations means, with respect to a series of Securities, direct obligations of
the government that issues the currency in which the Securities of the series are payable for the
payment of which the full faith and credit of such government is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of such government,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government.
Guarantee means the guarantee of the Companys obligations under the Securities of a series
by a Subsidiary Guarantor (specified with respect to such series as contemplated by Section
2.01(9)) as provided in Article X.
Holder means a Person in whose name a Security is registered.
2
Indenture means this Indenture as amended or supplemented from time to time pursuant to the
provisions hereof, and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.
interest means, with respect to an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, shall have the meaning
assigned to such term in the Security as contemplated by Section 2.01.
Issue Date means, with respect to Securities of a series, the date on which the Securities
of such series are originally issued under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in any of
The City of New York, New York; Houston, Texas or a Place of Payment are authorized or obligated by
law, regulation or executive order to remain closed.
Maturity means, with respect to any Security, the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.
Officer means the Chairman of the Board, the President, any Vice Chairman of the Board, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary or any Assistant Secretary of a Person.
Officers Certificate means a certificate signed by two Officers of a Person.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company or the Trustee.
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 6.02.
Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint stock company, trust, unincorporated
organization or government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
Place of Payment means, with respect to the Securities of any series, the place or places
where the principal of, premium (if any) and interest on and any Additional Amounts with respect to
the Securities of that series are payable as specified in accordance with Section 2.01 subject to
the provisions of Section 4.02.
3
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
Redemption Date means, with respect to any Security to be redeemed, the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price means, with respect to any Security to be redeemed, the price at which it
is to be redeemed pursuant to this Indenture.
Responsible Officer means 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 persons knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.
Rule 144A Securities means Securities of a series designated pursuant to Section 2.01 as
entitled to the benefits of Section 4.03(b).
SEC means the Securities and Exchange Commission.
Securities has the meaning stated in the preamble of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.
Security Custodian means, with respect to Securities of a series issued in global form, the
Trustee for Securities of such series, as custodian with respect to the Securities of such series,
or any successor entity thereto.
Significant Subsidiary means a Subsidiary of the Company that is a significant subsidiary
of the Company as such term is defined in Rule 1-02(w) of Regulation S-X as of the date hereof.
Stated Maturity means, when used with respect to any Security or any installment of
principal thereof or interest thereon, the date specified in such Security as the fixed date on
which the principal of such Security or such installment of principal or interest is due and
payable.
Subsidiary means a Person at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, voting stock
means stock having voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
Subsidiary Guarantors means, with respect to any series of Securities, the Person or
Persons, if any, named in accordance with Section 2.01(9) as the Subsidiary Guarantors (i) in or
pursuant to a Board Resolution, and set forth, or determined in the manner provided, in an
Officers Certificate of the Company or in a Company Order, or (ii) in an
4
indenture supplemental hereto establishing the terms of such series of Securities until a
successor Person or Persons shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Subsidiary Guarantor with respect to such series of Securities shall
mean such successor Person or Persons, in any case until the Guarantee is released pursuant to the
provisions of Article X. If a series of Securities does not have any Subsidiary Guarantors, all
references in this Indenture to the Subsidiary Guarantors shall be ignored with respect to such
series of Securities.
TIA means the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
Trustee means the Person named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter Trustee means 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 means the Trustee with respect to Securities of that
series.
United States means the United States of America (including the States and the District of
Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
U.S. Government Obligations means Government Obligations with respect to Securities payable
in Dollars.
5
SECTION 1.02
Other Definitions.
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Defined
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Term
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in Section
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Agent Members
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2.17
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Bankruptcy Custodian
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6.01
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Conversion Event
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6.01
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covenant defeasance
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8.01
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Event of Default
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6.01
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Exchange Rate
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2.11
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Judgment Currency
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6.10
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legal defeasance
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8.01
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mandatory sinking fund payment
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3.09
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optional sinking fund payment
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3.09
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Paying Agent
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2.05
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Registrar
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2.05
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Required Currency
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6.10
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Successor
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5.01
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SECTION 1.03
Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture (and if the Indenture is not qualified under the TIA
at that time, as if it were so qualified unless otherwise provided). The following TIA terms used
in this Indenture have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company, any Subsidiary Guarantor or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to
another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
6
SECTION 1.04
Rules of Construction.
Unless the context otherwise requires:
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(1)
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a term has the meaning assigned to it;
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(2)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3)
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or is not exclusive;
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(4)
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words in the singular include the plural, and in the plural
include the singular;
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(5)
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provisions apply to successive events and transactions; and
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(6)
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all references in this instrument to Articles and Sections are
references to the corresponding Articles and Sections in and of this
instrument.
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ARTICLE II
THE SECURITIES
SECTION 2.01
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities
of the series from the Securities of all other series);
(2) if there is to be a limit, the 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 2.08, 2.09,
2.12, 2.17, 3.07 or 9.05 and except for any Securities which, pursuant to Section 2.04 or
2.17, are deemed never to have been authenticated and delivered hereunder);
provided,
however,
that unless otherwise provided in the terms of the series, the authorized aggregate
principal amount of such series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to
such effect;
7
(3) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global
form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests
in any such Global Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;
(4) the manner in which any interest payable on a temporary Global Security on any
Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium (if any) on the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what circumstances Additional
Amounts with respect to such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall be payable
and the record date for the interest payable on any Securities on any Interest Payment Date,
or if other than provided herein, the Person to whom any interest on Securities of the
series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02, the principal
of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company must exercise any such
option, if different from those set forth herein;
(9) whether Securities of the series are entitled to the benefits of any Guarantee of
any Subsidiary Guarantor pursuant to this Indenture, the identity of any such Subsidiary
Guarantors and any terms of such Guarantee with respect to the Securities of the series in
addition to those set forth in Article X, or any exceptions to or changes to those set forth
in Article X;
(10) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such
obligation;
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(11) if other than denominations of $1,000 and any integral multiple thereof, the
denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including composite currencies)
or the form, including equity securities, other debt securities (including Securities),
warrants or any other securities or property of the Company or any other Person, in which
payment of the principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to Securities of such series as to which
such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which such amounts shall be determined;
(15) if other than the entire principal amount thereof, the portion of the principal
amount of Securities of the series that shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 6.02;
(16) any additional means of satisfaction and discharge of this Indenture and any
additional conditions or limitations to discharge with respect to Securities of the series
and the related Guarantees, if any, pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
(17) any deletions or modifications of or additions to the Events of Default set forth
in Section 6.01 or covenants of the Company or any Subsidiary Guarantor set forth in Article
IV pertaining to the Securities of the series;
(18) any restrictions or other provisions with respect to the transfer or exchange of
Securities of the series, which may amend, supplement, modify or supersede those contained
in this Article II;
(19) if the Securities of the series are to be convertible into or exchangeable for
capital stock, other debt securities (including Securities), warrants, other equity
securities or any other securities or property of the Company, any Subsidiary Guarantor or
any other Person, at the option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or exchange;
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(20) if the Securities of the series are to be entitled to the benefit of
Section 4.03(b) (and accordingly constitute Rule 144A Securities), that fact; and
(21) any other terms of the series (which terms shall not be prohibited by 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 in or pursuant to the Board Resolution referred to above
and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers
Certificate or Company Order referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers Certificate or certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers
Certificate or Company Order setting forth the terms of the series.
SECTION 2.02
Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03
Forms Generally.
The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Companys certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.
The Trustees certificate of authentication shall be in substantially the following form:
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This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Wells Fargo Bank, National Association,
as Trustee
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By:
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Authorized Signatory.
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SECTION 2.04
Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on behalf of the Company and, with
respect to any related Guarantee, an Officer of each Subsidiary Guarantor shall sign the Notation
of Guarantee on behalf of such Subsidiary Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or the related
Guarantees, if any, or be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if
any Security has been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with Section 11.05 and need
not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Guarantees, if any.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver such Securities for original issue
upon a Company Order for the authentication and delivery of such Securities or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such
order shall specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated, the name or names of the initial Holder or
Holders and any other terms of the Securities of such series not otherwise determined. If provided
for in such procedures, such Company Order may authorize (1) authentication and delivery of
Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred to
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above and the other documents required by Section 11.04), and (subject to Section 7.01) shall
be fully protected in relying upon:
(a) an Officers Certificate setting forth the Board Resolution and, if applicable, an
appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Securities have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and the related Guarantees, if any, when
authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company and the Subsidiary Guarantors,
respectively, enforceable against the Company and the Subsidiary Guarantors,
respectively, in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors generally, and the application
of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Subsidiary Guarantor or any other
Affiliate of the Company.
Each Security shall be dated the date of its authentication.
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SECTION 2.05
Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of Securities where Securities
of such series may be presented for registration of transfer or exchange (Registrar) and an
office or agency where Securities of such series may be presented for payment (Paying Agent).
The Registrar shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term Registrar includes any co-registrar and the term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as
Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06
Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed. Upon payment over to the Trustee and upon accounting for any funds disbursed,
the Paying Agent (if other than the Company, a Subsidiary Guarantor or another Subsidiary) shall
have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Each Paying Agent shall otherwise comply with TIA § 317(b).
SECTION 2.07
Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest Payment Date with
respect to such series of Securities, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
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SECTION 2.08
Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01:
When Securities of any series are presented to the Registrar with the request to register the
transfer of such Securities or to exchange such Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met;
provided, however
, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrars written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any registration of transfer
or exchange (except as otherwise expressly permitted herein), but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable upon exchanges
pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in accordance
with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the
contrary, the Company shall not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Security being redeemed in part, or (b) any Security during the period beginning 15
Business Days prior to the mailing of notice of any offer to repurchase Securities of the series
required pursuant to the terms thereof or of redemption of Securities of a series to be redeemed
and ending at the close of business on the day of mailing.
SECTION 2.09
Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims
that the Security has been destroyed, lost or stolen and the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of such Security, the Company
shall issue and the Trustee shall authenticate a replacement Security of the same series if the
Trustees requirements are met. If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security. If required by the Trustee, any Subsidiary Guarantor or the
Company, such Holder must furnish an indemnity bond that is sufficient in the judgment of the
Trustee and the Company to protect the Company, each Subsidiary Guarantor, the Trustee, any Agent
or any authenticating agent from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
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SECTION 2.10
Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those described in this
Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
A Security does not cease to be outstanding because the Company, a Subsidiary Guarantor or
another Affiliate of the Company or an Affiliate of a Subsidiary Guarantor holds the Security.
SECTION 2.11
Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount of
an Original Issue Discount Security shall be the principal amount thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the
Dollar equivalent, as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is certified for customs purposes by
the Federal Reserve Bank of New York (the Exchange Rate) on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent, as determined by the Company by reference to the Exchange Rate on the date of
original issuance of such Security, of the amount determined as provided in (a) above), of such
Security and (c) Securities owned by the Company, a Subsidiary Guarantor or any other obligor upon
the Securities or any Affiliate of the Company or a Subsidiary Guarantor or of such other obligor
shall be disregarded, except that, for the purpose of determining whether the Trustee shall be
protected in relying upon any such direction, amendment, supplement, waiver or consent, only
Securities that a Responsible Officer of the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.12
Temporary Securities.
Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.
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SECTION 2.13
Cancellation.
The Company or any Subsidiary Guarantor at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange, payment or redemption or for credit
against any sinking fund payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or cancellation or for credit
against any sinking fund. Unless the Company shall direct in writing that canceled Securities be
returned to it, after written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the Trustee, and the
Trustee shall maintain a record of their disposal. The Company may not issue new Securities to
replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.14
Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest (except defaulted
interest) on any Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at
the close of business on the record date next preceding such Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The
Holder must surrender a Security to a Paying Agent to collect principal payments. Unless otherwise
provided with respect to the Securities of any series, the Company will pay the principal of,
premium (if any) and interest on and any Additional Amounts with respect to the Securities in
Dollars. Such amounts shall be payable at the offices of the Trustee or any Paying Agent,
provided
that at the option of the Company, the Company may pay such amounts (1) by wire transfer with
respect to Global Securities or (2) by check payable in such money mailed to a Holders registered
address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of any series, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the
defaulted interest, in each case at the rate provided in the Securities of such series and in
Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the
Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days prior written notice from the Company setting forth such special record date and the interest
amount to be paid) shall mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15
Persons Deemed Owners.
The Company, the Subsidiary Guarantors, the Trustee, any Agent and any authenticating agent
may treat the Person in whose name any Security is registered as the owner of such Security for the
purpose of receiving payments of principal of, premium (if any) or interest on or any Additional
Amounts with respect to such Security and for all other purposes. None of the Company, any
Subsidiary Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any
notice to the contrary.
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SECTION 2.16
Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year comprising
twelve 30-day months.
SECTION 2.17
Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.01, then, notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02,
any such Global Security shall represent such of the outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of outstanding Securities represented thereby
shall be made by the Trustee (i) in such manner and upon instructions given by such Person or
Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee
pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other
written form of instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest in such Global
Security. Subject to the provisions of Section 2.04 and, if applicable, Section 2.12, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such Security or in the applicable Company
Order. With respect to the Securities of any series that are represented by a Global Security, the
Company and the Subsidiary Guarantors authorize the execution and delivery by the Trustee of a
letter of representations or other similar agreement or instrument in the form customarily provided
for by the Depositary appointed with respect to such Global Security. Any Global Security may be
deposited with the Depositary or its nominee, or may remain in the custody of the Trustee or the
Security Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar agreement
between the Trustee and the Depositary. If a Company Order has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of
a Security in global form shall be in writing but need not comply with Section 11.05 and need not
be accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary (Agent Members) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee or the Security Custodian as its custodian, or under such Global Security, and the
Depositary may be treated by the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian and any agent of the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of Securities of such series is
entitled to take under this Indenture or the Securities of such series and (ii) nothing herein
shall prevent the Company, any Subsidiary Guarantor, the Trustee or the
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Security Custodian, or any agent of the Company, any Subsidiary Guarantor, the Trustee or the
Security Custodian, from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding Section 2.08, and except as otherwise provided pursuant to Section 2.01:
Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if, and only if, either (1) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor Depositary is not appointed by the Company within 90 days of such notice,
(2) an Event of Default has occurred with respect to such series and is continuing and the
Registrar has received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver Securities within 30 days
of such request) or (3) the Company determines not to have the Securities represented by a Global
Security.
In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interests in the Global Security to be transferred, and
the Company shall execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities shall authenticate and deliver, one or more Securities of the same
series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a Global Security to
beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its
beneficial interests in the Global Security, an equal aggregate principal amount of Securities of
authorized denominations.
None of the Company, any Subsidiary Guarantor or the Trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on account of, Securities by
the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating
to such Securities. None of the Company, any Subsidiary Guarantor or the Trustee shall be liable
for any delay by the related Global Security Holder or the Depositary in identifying the beneficial
owners, and each such Person may conclusively rely on, and shall be protected in relying on,
instructions from such Global Security Holder or the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Securities
to be issued).
The provisions of the last sentence of the third paragraph of Section 2.04 shall apply to any
Global Security if such Global Security was never issued and sold by the Company and the Company or
a Subsidiary Guarantor delivers to the Trustee the Global Security together
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with written instructions (which need not comply with Section 11.05 and need not be
accompanied by an Opinion of Counsel) with regard to the cancellation or reduction in the principal
amount of Securities represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise specified as
contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any
Additional Amounts with respect to any Global Security shall be made to the Person or Persons
specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01
Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.
SECTION 3.02
Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall
notify the Trustee of the Redemption Date and the principal amount of Securities of such series to
be redeemed. The Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to the Trustee an
Officers Certificate stating that such redemption will comply with the provisions of this
Indenture and of the Securities of such series. Any such notice may be canceled at any time prior
to the mailing of such notice of such redemption to any Holder and shall thereupon be void and of
no effect. A redemption or notice thereof may be subject to one or more conditions.
SECTION 3.03
Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series of a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities of such series (and tenor) not previously called for redemption, either at
random, by lot or by such other method as the Trustee shall deem fair and appropriate and that may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized denomination for
Securities of that series or of the principal amount of Global Securities of such series.
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
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For purposes of this Indenture, unless the context otherwise requires, all provisions relating
to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be
redeemed only in part, to the portion of the principal amount thereof which has been or is to be
redeemed.
SECTION 3.04
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company and the Subsidiary Guarantors default in making the
redemption payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of such Securities is
to receive payment of the Redemption Price upon surrender to the Paying Agent of the
Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of the principal amount
thereof to be redeemed and that on and after the Redemption Date, upon surrender for
cancellation of such Security to the Paying Agent, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;
(5) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the case;
(7) the CUSIP number, if any, relating to such Securities; and
(8) if the redemption or notice thereof is subject to one or more conditions, a
statement to such effect and the condition or conditions precedent.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys written request, by the Trustee in the name and at the
expense of the Company.
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SECTION 3.05
Effect of Notice of Redemption.
Once notice of redemption is mailed, unless the redemption or notice thereof is subject to one
or more conditions as specified in the notice, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender to the Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price, but interest
installments whose maturity is on or prior to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the close of business on the relevant record
dates specified pursuant to Section 2.01.
SECTION 3.06
Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any Redemption Date, the Company or a
Subsidiary Guarantor shall deposit with the Trustee or the Paying Agent (or, if the Company or a
Subsidiary Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in
Section 2.06) an amount of money in same day funds sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any
Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on
that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company or a Subsidiary Guarantor to the Trustee for cancellation.
If the Company or a Subsidiary Guarantor complies with the preceding paragraph, then, unless
the Company or the Subsidiary Guarantors default in the payment of such Redemption Price, interest
on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for the right to receive the
Redemption Price upon surrender of such Securities. If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the principal, premium, if any, any
Additional Amounts, and, to the extent lawful, accrued interest thereon shall, until paid, bear
interest from the Redemption Date at the rate specified pursuant to Section 2.01 or provided in the
Securities or, in the case of Original Issue Discount Securities, such Securities yield to
maturity.
SECTION 3.07
Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities, of the same series and of any authorized denomination
as requested by such Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not redeemed.
SECTION 3.08
Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company, any Subsidiary
Guarantor or any Affiliate of the Company or any Subsidiary Guarantor may, subject to applicable
law, at any time purchase or otherwise acquire Securities in the open market or by
21
private agreement. Any such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Subsidiary Guarantor may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall
apply to all Securities so delivered.
SECTION 3.09
Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series and by this Article III.
SECTION 3.10
Satisfaction of Sinking Fund Payments with Securities.
The Company or a Subsidiary Guarantor may deliver outstanding Securities of a series (other
than any previously called for redemption) and may apply as a credit Securities of a series that
have been redeemed either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such series
of Securities;
provided
that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
SECTION 3.11
Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers Certificate of the Company specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and
will also deliver or cause to be delivered to the Trustee any Securities to be so delivered.
Failure of the Company to timely deliver or cause to be delivered such Officers Certificate and
Securities specified in this paragraph, if any, shall not constitute a default but shall constitute
the election of the Company (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 Company will make
no optional sinking fund payment with respect to such series as provided in this Section.
22
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 $100,000 (or the Dollar equivalent thereof based on the
applicable Exchange Rate on the date of original issue of the applicable Securities) or a lesser
sum if the Company 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 to
the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less
than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01
Payment of Securities.
The Company shall pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of each series on the dates and in the manner provided in
the Securities of such series and in this Indenture. Principal, premium, interest and any
Additional Amounts shall be considered paid on the date due if the Paying Agent (other than the
Company, a Subsidiary Guarantor or other Subsidiary) holds on that date money deposited by the
Company or a Subsidiary Guarantor designated for and sufficient to pay all principal, premium,
interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium (if any), at a rate equal to the then applicable
interest rate on the Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and any Additional Amount (without regard to any applicable grace period) at the same rate
to the extent lawful.
SECTION 4.02
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities
of that series may be presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the Company or a
Subsidiary Guarantor in respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Company by written notice to the Trustee and the Subsidiary
Guarantors, such office or agency shall be the office of the Trustee at
23
1445 Ross Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202. The Company will give prompt
written notice to the Trustee and the Subsidiary Guarantors of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee and the Subsidiary Guarantors with
the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 4.03
SEC Reports; Financial Statements.
(a) If the Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall file with the Trustee, within 15 days after it files the same with the SEC,
copies of the annual reports and the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If
this Indenture is qualified under the TIA, but not otherwise, the Company shall also comply with
the provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee
shall be for informational purposes only, and the Trustees receipt thereof shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Companys and the Subsidiary Guarantors compliance with any of their
covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers
Certificates or certificates delivered pursuant to Section 4.04).
(b) If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall furnish to all Holders of Rule 144A Securities and prospective purchasers of
Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under the
Securities Act of 1933, as amended.
SECTION 4.04
Compliance Certificate.
(a) Each of the Company and the Subsidiary Guarantors shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, a statement signed by an Officer of the
Company and each Subsidiary Guarantor, respectively, which need not constitute an Officers
Certificate, complying with TIA § 314(a)(4) and stating that in the course of performance by the
signing Officer of his duties as such Officer of the Company or such Subsidiary Guarantor, as the
case may be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Subsidiary Guarantor, as the case may be, of its obligations
under this Indenture, and further stating that to the best of his
24
knowledge the Company or such Subsidiary Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the Company or such Subsidiary Guarantor,
as the case may be, is taking or proposes to take with respect thereto).
(b) The Company or any Subsidiary Guarantor shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company or such Subsidiary
Guarantor, as the case may be, becoming aware of any Default or Event of Default under this
Indenture, an Officers Certificate specifying such Default or Event of Default and what action the
Company or such Subsidiary Guarantor, as the case may be, is taking or proposes to take with
respect thereto.
SECTION 4.05
Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.
SECTION 4.06
Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive it from paying all or any portion of the principal of or interest on
the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Subsidiary Guarantors hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.07
Additional Amounts.
If the Securities of a series expressly provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.07
to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.
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ARTICLE V
SUCCESSORS
SECTION 5.01
Limitations on Mergers and Consolidations.
Neither the Company nor any Subsidiary Guarantor shall, in any transaction or series of
transactions, consolidate with or merge into any Person, or sell, lease, convey, transfer or
otherwise dispose of all or substantially all of its assets to any Person (other than a
consolidation or merger of one or more Subsidiary Guarantors into the Company or a merger of
Subsidiary Guarantors, or a sale, lease, conveyance, transfer or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor to the Company or of a Subsidiary
Guarantor to another Subsidiary Guarantor), unless:
(1) either (a) the Company or such Subsidiary Guarantor, as the case may be, shall be
the continuing Person or (b) the Person (if other than the Company or such Subsidiary
Guarantor) formed by such consolidation or into which the Company or such Subsidiary
Guarantor is merged, or to which such sale, lease, conveyance, transfer or other disposition
shall be made (collectively, the Successor), expressly assumes by supplemental indenture
the due and punctual payment of the principal of, premium (if any) and interest on and any
Additional Amounts with respect to all the Securities and the performance of the Companys
covenants and obligations under this Indenture and the Securities, or, in the case of such
Subsidiary Guarantor, the performance of the Guarantee and such Subsidiary Guarantors
covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to such transaction or series of transactions, no
Default or Event of Default shall have occurred and be continuing or would result therefrom;
and
(3) the Company delivers to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that the transaction and such supplemental indenture comply with this
Indenture.
SECTION 5.02
Successor Person Substituted.
Upon any consolidation or merger of the Company or a Subsidiary Guarantor, as the case may be,
or any sale, lease, conveyance, transfer or other disposition of all or substantially all of the
assets of the Company or such Subsidiary Guarantor in accordance with Section 5.01, the Successor
formed by such consolidation or into or with which the Company or the Subsidiary Guarantor is
merged or to which such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of the Company or such
Subsidiary Guarantor, as the case may be, under this Indenture and the Securities with the same
effect as if such Successor had been named as the Company or such Subsidiary Guarantor, as the case
may be, herein and the predecessor Company or Subsidiary Guarantor, in the case of a sale,
conveyance, transfer or other disposition, shall be
26
released from all obligations under this Indenture, the Securities and, in the case of a
Subsidiary Guarantor, the Guarantee.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01
Events of Default.
Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing such series of Securities
or in the form of Security for such series, an Event of Default, wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series when the same
becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and such default continues for a period of 30 days;
(4) the Company, or if any series of Securities outstanding is entitled to the benefits
of a Guarantee, any Subsidiary Guarantor, fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other than
an agreement, covenant or provision that has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other than that series) which
shall not have been remedied within the specified period after written notice, as specified
in the last paragraph of this Section 6.01;
(5) the Company, or if that series of Securities is entitled to the benefits of a
Guarantee by any Subsidiary Guarantor, any Subsidiary Guarantor, if it is a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) consents to the appointment of a Bankruptcy Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
27
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:
(A) is for relief against the Company or any Subsidiary Guarantor with respect
to such series, if it is a Significant Subsidiary, as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or any Subsidiary Guarantor,
if it is a Significant Subsidiary, or a Bankruptcy Custodian for all or
substantially all of the property of the Company, or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary, or
(C) orders the liquidation of the Company or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary; or
(7) any Guarantee of any Subsidiary Guarantor that is a Significant Subsidiary
with respect to such series ceases to be in full force and effect with respect to
Securities of that series (except as otherwise provided in this Indenture) or is
declared null and void in a judicial proceeding, or any such Subsidiary Guarantor
denies or disaffirms its obligations under this Indenture or such Guarantee; or
(8) any other Event of Default provided with respect to Securities of that series
occurs.
The term Bankruptcy Custodian means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of any Default or 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 or Event of Default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium
(if any) or interest on or Additional Amounts with respect to any Security is payable in a currency
or currencies (including a composite currency) other than Dollars and such currency or currencies
are not available to the Company or a Subsidiary Guarantor for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the Company or such
Subsidiary Guarantor (a Conversion Event), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an amount equal to
the Dollar equivalent of the amount payable in such other currency, as determined by the Company or
the Subsidiary Guarantor, as the case may be, by reference to the Exchange Rate on the date of such
payment, or, if such rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made
under such circumstances in Dollars where the required
28
payment is in a currency other than Dollars will not constitute an Event of Default under this
Indenture.
Promptly after the occurrence of a Conversion Event, the Company or a Subsidiary Guarantor
shall give written notice thereof to the Trustee; and the Trustee, promptly after receipt of such
notice, shall give notice thereof in the manner provided in Section 11.02 to the Holders. Promptly
after the making of any payment in Dollars as a result of a Conversion Event, the Company or a
Subsidiary Guarantor, as the case may be, shall give notice in the manner provided in Section 11.02
to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such
payments.
A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default until the
Trustee notifies the Company and the Subsidiary Guarantors, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by such Default notify
the Company, the Subsidiary Guarantors and the Trustee, of the Default, and the Company or the
applicable Subsidiary Guarantor, as the case may be, fails to cure the Default within 90 days after
receipt of the notice. The notice must specify the Default, demand that it be remedied and state
that the notice is a Notice of Default.
SECTION 6.02
Acceleration.
If an Event of Default with respect to any Securities of any series at the time outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 6.01) occurs and is
continuing, the Trustee by notice to the Company and the Subsidiary Guarantors, or the Holders of
at least 25% in principal amount of the then outstanding Securities of the series affected by such
Event of Default by notice to the Company, the Subsidiary Guarantors and the Trustee, may declare
the principal of (or, if any such Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) and all accrued and unpaid
interest on all then outstanding Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on the Securities shall be due and payable immediately.
If an Event of Default specified in clause (5) or (6) of Section 6.01 hereof occurs, such amounts
shall
ipso facto
become and be immediately due and payable without any declaration, notice or other
act on the part of the Trustee or any Holder. The Holders of a majority in principal amount of the
then outstanding Securities of the series affected by such Event of Default, by written notice to
the Trustee, may rescind an acceleration and its consequences (other than nonpayment of principal
of or premium or interest on or any Additional Amounts with respect to the Securities) if the
rescission would not conflict with any judgment or decree and if all existing Events of Default
with respect to Securities of that series have been cured or waived, except nonpayment of
principal, premium, interest or any Additional Amounts that has become due solely because of the
acceleration.
SECTION 6.03
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of, or premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
29
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04
Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then
outstanding Securities of any series by notice to the Trustee may waive an existing or past Default
or Event of Default with respect to such series and its consequences (including waivers obtained in
connection with a tender offer or exchange offer for Securities of such series or a solicitation of
consents in respect of Securities of such series,
provided
that in each case such offer or
solicitation is made to all Holders of then outstanding Securities of such series), except (1) a
continuing Default or Event of Default in the payment of the principal of, or premium, if any, or
interest on or any Additional Amounts with respect to any Security or (2) a continued Default in
respect of a provision that under Section 9.02 cannot be amended or supplemented without the
consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05
Control by Majority.
With respect to Securities of any series, the Holders of a majority in principal amount of the
then outstanding Securities of such series may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in clause (1), (2), (3)
or (7) of Section 6.01. However, the
Trustee may refuse to follow any direction that conflicts with applicable law or this Indenture,
that the Trustee determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability;
provided, however
, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such direction. Prior to taking
any action hereunder, the Trustee shall be entitled to indemnification satisfactory to it in its
sole discretion from Holders directing the Trustee against all losses and expenses caused by taking
or not taking such action.
SECTION 6.06
Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with
respect to this Indenture or the Securities of such series or any related Guarantees only if:
30
(1) the Holder gives to the Trustee written notice of a continuing Event of Default
with respect to such series;
(2) the Holders of at least 25% in principal amount of the then outstanding Securities
of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
SECTION 6.07
Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal of and premium, if any, and interest on and any Additional Amounts
with respect to the Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of the Holder.
SECTION 6.08
Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as trustee of an
express trust against the Company or a Subsidiary Guarantor for the amount of principal, premium
(if any), interest and any Additional Amounts remaining unpaid on the Securities of the series
affected by the Event of Default, and interest on overdue principal and premium, if any, and, to
the extent lawful, interest on overdue interest, and such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents and to
take such actions, including participating as a member, voting or otherwise, of any committee of
creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the Company or a
Subsidiary Guarantor or their respective creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or
31
deliverable on any such claims and any Bankruptcy Custodian in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due to it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.07 out of
the estate in any such proceeding, 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, money,
securities and other properties which the Holders of the Securities may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10
Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall pay out the money in
the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in respect of which or
for the benefit of which such money has been collected, for principal, premium (if any),
interest and any Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium (if any),
interest and any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix record dates and payment dates
for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment
against the Company or a Subsidiary Guarantor in any court it is necessary to convert the sum due
in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect
to the Securities of any series (the Required Currency) into a currency in which a judgment will
be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of New York next
preceding that on which final judgment is given. None of the Company, any Subsidiary Guarantor or
the Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to
Holders of Securities under this Section 6.10 caused by a change in exchange rates between the time
the amount of a judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make
32
payments under this Section 6.10 to Holders of Securities, but payment of such judgment shall
discharge all amounts owed by the Company and the Subsidiary Guarantors on the claim or claims
underlying such judgment.
SECTION 6.11
Undertaking for Costs.
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 a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
such exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default with respect to the Securities of any
series:
(1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine such certificates and opinions to determine
whether, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
33
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company and the Subsidiary Guarantors. Money held in trust
by the Trustee need not be segregated from other funds except to the extent required by law. All
money received by the Trustee shall, until applied as herein provided, be held in trust for the
payment of the principal of, premium (if any) and interest on and Additional Amounts with respect
to the Securities.
SECTION 7.02
Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an Officers
Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such instruction, Officers
Certificate or Opinion of Counsel. The Trustee may consult at the Companys expense with counsel
of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company or any Subsidiary Guarantor shall be sufficient if signed by an Officer
of the Company.
SECTION 7.03
May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, any Subsidiary Guarantor or any of their
respective Affiliates with the same rights it would have if it were not Trustee. Any
34
Agent may do the same with like rights and duties. However, the Trustee is subject to
Sections 7.10 and 7.11.
SECTION 7.04
Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities
or any money paid to the Company or any Subsidiary Guarantor or upon the Companys or such
Subsidiary Guarantors direction under any provision hereof, it shall not be responsible for the
use or application of any money received by any Paying Agent other than the Trustee and it shall
not be responsible for any statement or recital herein or any statement in the Securities other
than its certificate of authentication.
SECTION 7.05
Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such
series a notice of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if any) and interest on
and Additional Amounts or any sinking fund installment with respect to the Securities of such
series, the Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the interests of Holders of
Securities of such series.
SECTION 7.06
Reports by Trustee to Holders.
Within 60 days after each ___of each year after the execution of this Indenture,
the Trustee shall mail to Holders of a series, the Subsidiary Guarantors and the Company a brief
report dated as of such reporting date that complies with TIA § 313(a);
provided, however
, that if
no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date with respect to a series, no report need be transmitted to Holders of such series. The
Trustee also shall comply with TIA § 313(b). The Trustee shall also transmit by mail all reports
if and as required by TIA §§ 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of a series of Securities shall be
filed by the Company or a Subsidiary Guarantor with the SEC and each securities exchange, if any,
on which the Securities of such series are listed. The Company shall notify the Trustee if and when
any series of Securities is listed on any securities exchange.
SECTION 7.07
Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of this Indenture and services
hereunder such compensation as the Company and the Trustee shall from time to time agree in
writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of
an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustees agents and counsel.
35
The Company hereby indemnifies the Trustee and any predecessor Trustee against any and all
loss, liability, damage, claim or expense, including taxes (other than taxes based upon, measured
by or determined by the income of the Trustee), incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company and the Subsidiary Guarantors
promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustees negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts
with respect to Securities of any series. Such lien and the Companys obligations under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
The Trustee may resign and be discharged at any time with respect to the Securities of one or
more series by so notifying the Company and the Subsidiary Guarantors. The Holders of a majority
in principal amount of the then outstanding Securities of any series may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee, the Company and the
Subsidiary Guarantors. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it
36
being understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series). Within one year after the
successor Trustee with respect to the Securities of any series takes office, the Holders of a
majority in principal amount of the Securities of such series then outstanding may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does not take office
within 30 days after the retiring or removed Trustee resigns or is removed, the retiring or removed
Trustee, the Company, any Subsidiary Guarantor or the Holders of at least 10% in principal amount
of the then outstanding Securities of such series may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply with Section 7.10,
any Holder of Securities of such series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such series.
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to the Subsidiary Guarantors. Thereupon the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the Subsidiary Guarantors, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more (but not all) series shall execute
and deliver an indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring
37
Trustee shall transfer to such successor Trustee all property held by such retiring Trustee as
Trustee with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.
SECTION 7.09
Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee;
provided, however
, that in the
case of a transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustees liabilities
hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated; and in case at that time any
of the Securities shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10
Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation or banking or
trust company or association organized and doing business under the laws of the United States, any
State thereof or the District of Columbia and authorized under such laws to exercise corporate
trust power, shall be subject to supervision or examination by Federal or State (or the District of
Columbia) authority and shall have, or be a subsidiary of a bank or bank holding company having, a
combined capital and surplus of at least $50 million as set forth in its most recent published
annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA
§ 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA § 310(b).
SECTION 7.11
Preferential Collection of Claims Against the Company or a Subsidiary Guarantor.
The Trustee is subject to and shall comply with the provisions of TIA § 311(a), excluding any
creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
38
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01
Termination of the Companys and the Subsidiary Guarantors Obligations.
(a) This Indenture shall cease to be of further effect with respect to the Securities of a
series (except that the Companys obligations under Section 7.07, the Trustees and Paying Agents
obligations under Section 8.03 and the rights, powers, protections and privileges accorded the
Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute
proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to
the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not theretofore delivered to the
Trustee for cancellation:
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(i)
|
|
have become due and payable, or
|
|
|
(ii)
|
|
will become due and payable at
their Stated Maturity within one year, or
|
|
|
(iii)
|
|
are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
|
and, in the case of clause (i), (ii) or (iii) above, the Company or a Subsidiary
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause (i)) in trust for
such purpose (x) cash in an amount, or (y) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of cash in an amount or (z) a combination thereof, which will be
sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on the Securities of such series for principal and interest to the date
of such deposit (in the case of Securities which have become due and payable) or for
principal, premium, if any, and interest to the Stated Maturity or Redemption Date,
as the case may be; or
39
(C) the Company and the Subsidiary Guarantors have properly fulfilled such
other means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums
payable by them hereunder with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series
as contemplated by Section 2.01, the Company may, at its option, terminate certain of its and the
Subsidiary Guarantors respective obligations under this Indenture (covenant defeasance) with
respect to the Securities of a series if:
(1) the Company or a Subsidiary Guarantor has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely to the benefit
of the Holders of Securities of such series, (i) money in the currency in which payment of
the Securities of such series is to be made in an amount, or (ii) Government Obligations
with respect to such series, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest
on all Securities of such series on each date that such principal, premium (if any) or
interest is due and payable and (at the Stated Maturity thereof or upon redemption as
provided in Section 8.01(e)) to pay all other sums payable by it hereunder;
provided
that
the Trustee shall have been irrevocably instructed to apply such money and/or the proceeds
of such Government Obligations to the payment of said principal, premium (if any) and
interest with respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a
nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that
the Holders will not recognize income, gain or loss for U.S. Federal income tax
40
purposes as a result of the Companys exercise of its option under this Section 8.01(b)
and will be subject to U.S. 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 option had not been exercised;
(5) the Company and the Subsidiary Guarantors have complied with any additional
conditions specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a conflicting
interest as defined in TIA § 310(b).
In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the Companys and the
Subsidiary Guarantors respective obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02,
7.07, 7.08 and 8.04, the Trustees and Paying Agents obligations in Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the Companys obligations in
Section 7.07 and the Trustees and Paying Agents obligations in Section 8.03 shall survive with
respect to Securities of such series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the
other conditions set forth herein, the Trustee upon request shall acknowledge in writing the
discharge of the Companys and the Subsidiary Guarantors obligations under this Indenture with
respect to the Securities of such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to principal or interest
on or before such payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuers option.
(c) If the Company and the Subsidiary Guarantors have previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified pursuant to
Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities
of a series, then, unless this Section 8.01(c) is specified as not being applicable to Securities
of such series as contemplated by Section 2.01, the Company may elect that its and the Subsidiary
Guarantors respective obligations to make payments with respect to Securities of such series be
discharged (legal defeasance), if:
(1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof
shall have occurred at any time during the period ending on the 91st day after the date of
deposit contemplated by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of
41
Counsel from a nationally recognized counsel acceptable to the Trustee to the effect
referred to in Section 8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed to the Company, (ii)
a published ruling of the Internal Revenue Service pertaining to a comparable form of
transaction or (iii) a change in the applicable federal income tax law (including
regulations) after the date of this Indenture;
(3) the Company and the Subsidiary Guarantors have complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal defeasance of Securities of
such series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request requesting such legal
defeasance of the Securities of such series and an Officers Certificate stating that all
conditions precedent with respect to such legal defeasance of the Securities of such series
have been complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company and the Subsidiary Guarantors will be discharged from its
obligations under this Indenture and the Securities of such series to pay principal of, premium (if
any) and interest on and any Additional Amounts with respect to Securities of such series, the
Companys and the Subsidiary Guarantors respective obligations under Sections 4.01, 4.02 and 10.1
shall terminate with respect to such Securities, and the entire indebtedness of the Company
evidenced by such Securities and of the Subsidiary Guarantors evidenced by the related Guarantee
shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a series are specified to be applicable to such series as contemplated
by Section 2.01, each of the Company and the Subsidiary Guarantors may terminate any or all of its
obligations under this Indenture with respect to Securities of a series and any or all of its
obligations under the Securities of such series if it fulfills such other means of satisfaction and
discharge as may be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section
8.01 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
SECTION 8.02
Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money
or Government Obligations deposited with it pursuant to Section 8.01 hereof. It shall apply the
deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if
42
any) and interest on and any Additional Amounts with respect to the Securities of the series
with respect to which the deposit was made.
SECTION 8.03
Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company or any Subsidiary Guarantor
any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon
the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability of the Trustee and
the Paying Agent with respect to such money shall cease.
SECTION 8.04
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any series in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
and the Subsidiary Guarantors under this Indenture with respect to the Securities of such series
and under the Securities of such series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted
to apply all such money or Government Obligations in accordance with Section 8.01;
provided,
however,
that if the Company or any Subsidiary Guarantor has made any payment of principal of,
premium (if any) or interest on or any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company or such Subsidiary Guarantor, as the case may be,
shall be subrogated to the rights of the Holders of such Securities to receive such payment from
the money or Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01
Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture
or the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
43
(3) to provide for uncertificated Securities in addition to or in place of certificated
Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of or additional obligors on,
any series of Securities or the related Guarantees, if any;
(5) to comply with any requirement in order to effect or maintain the qualification of
this Indenture under the TIA;
(6) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), or to surrender any right or power
herein conferred upon the Company or any Subsidiary Guarantor;
(7) to add any additional Events of Default with respect to all or any series of the
Securities (and, if any Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided
that any
such change or elimination shall become effective only when there is no outstanding Security
of any series created prior to the execution of such amendment or supplemental indenture
that is adversely affected in any material respect by such change in or elimination of such
provision;
provided, further,
that any change made solely to conform the provisions of this
Indenture to the description of any Security in a prospectus
supplement pursuant to which such Securities were offered and sold will not be deemed
to adversely affect any Security of that series in any material respect;
(9) to establish the form or terms of Securities of any series as permitted by Section
2.01;
(10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Section 8.01;
provided, however
, that any such action shall not adversely affect
the interest of the Holders of Securities of such series or any other series of Securities
in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Subsidiary Guarantors in the execution of any
44
supplemental indenture authorized or permitted by the terms of this Indenture and make any
further appropriate agreements and stipulations that may be therein contained.
SECTION 9.02
With Consent of Holders.
Except as provided below in this Section 9.02, the Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture with the written consent (including consents
obtained in connection with a tender offer or exchange offer for Securities of any one or more
series or all series or a solicitation of consents in respect of Securities of any one or more
series or all series,
provided
that in each case such offer or solicitation is made to all Holders
of then outstanding Securities of each such series (but the terms of such offer or solicitation may
vary from series to series)) of the Holders of at least a majority in principal amount of the then
outstanding Securities of each series affected by such amendment or supplement.
Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company and the Subsidiary Guarantors in the execution of such amendment or supplemental
indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding Securities of one or
more series may waive compliance in a particular instance by the Company or any Subsidiary
Guarantor with any provision of this Indenture with respect to Securities of such series (including
waivers obtained in connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series,
provided
that in each case
such offer or solicitation is made to all Holders of then outstanding Securities of such series
(but the terms of such offer or solicitation may vary from series to series)).
However, without the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including default
interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory sinking fund payment with
respect to, or change the Stated Maturity of, any Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
45
(4) reduce the premium, if any, payable upon the redemption of any Security or change
the time at which any Security may or shall be redeemed;
(5) change any obligation of the Company or any Subsidiary Guarantor to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency or currencies (including composite currencies) in which
any Security or any premium, interest or Additional Amounts with respect thereto are
payable;
(7) impair the right to institute suit for the enforcement of any payment of principal
of, premium (if any) or interest on or any Additional Amounts with respect to any Security
pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of Securities necessary to
waive compliance with certain provisions of this Indenture pursuant to Section 6.04 or 6.07
or make any change in this sentence of Section 9.02;
(9) waive a continuing Default or Event of Default in the payment of principal of,
premium (if any) or interest on or Additional Amounts with respect to the Securities; or
(10) except as provided in Section 10.04, release any Subsidiary Guarantor or modify
the related Guarantee in any manner materially adverse to the Holders.
A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company or any Subsidiary Guarantor to
obtain any such consent otherwise required from such Holder) may be subject to the requirement that
such Holder shall have been the Holder of record of any Securities with respect to which such
consent is required or sought as of a date identified by the Company or such Subsidiary Guarantor
in a notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
46
SECTION 9.03
Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall comply in form and
substance with the TIA as then in effect.
SECTION 9.04
Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holders Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives written notice of
revocation before a date and time therefor identified by the Company or any Subsidiary Guarantor in
a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such
date and time shall be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.
The Company or any Subsidiary Guarantor may, but shall not be obligated to, fix a record date
(which need not comply with TIA § 316(c)) for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver or to take any other action under this Indenture.
If a record date is fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be Holders after such
record date. No consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities required hereunder for such
amendment or waiver to be effective shall have also been given and not revoked within such 90-day
period.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such
case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holders Security.
SECTION 9.05
Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an outstanding Security, the Company may
require the Holder of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security at the request of the Company regarding the changed terms and
return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the execution of any amendment or
supplement may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such amendment or supplement.
47
SECTION 9.06
Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant to this Article if the
amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplement, the Trustee shall be entitled to receive, and, shall be fully
protected in relying upon in good faith, an Officers Certificate and an Opinion of Counsel
provided at the expense of the Company or a Subsidiary Guarantor as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in accordance with its terms.
ARTICLE X
GUARANTEE
SECTION 10.01
Guarantee
.
(a) Notwithstanding any provision of this Article X to the contrary, the provisions of this
Article X relating to the Subsidiary Guarantors shall be applicable only to, and inure solely to
the benefit of, the Securities of any series designated, pursuant to Section 2.01, as entitled to
the benefits of the related Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (each, a Guarantee) to the Holders and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on the Securities and all other
amounts due and payable under this Indenture and the Securities by the Company, when and as such
principal, premium, if any, and interest shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise, according to the
terms of the Securities and this Indenture, subject to the limitations set forth in Section 10.03.
(c) Failing payment when due of any amount guaranteed pursuant to the related Guarantee, for
whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay
the same immediately. Each of the Guarantees hereunder is intended to be a general, unsecured,
senior obligation of the related Subsidiary Guarantor and will rank pari passu in right of payment
with all Debt of such Subsidiary Guarantor that is not, by its terms, expressly subordinated in
right of payment to such Guarantee. Each of the Subsidiary Guarantors hereby agrees that its
obligations hereunder shall be full, unconditional and absolute, irrespective of the validity,
regularity or enforceability of the Securities, its Guarantee, the Guarantee of any other
Subsidiary Guarantor or this Indenture, the absence of any action to enforce the same, any waiver
or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company or any Subsidiary Guarantor, or any action to enforce
the same or any other circumstances which might otherwise constitute a legal or equitable discharge
or defense of the Subsidiary Guarantors. Each of the Subsidiary Guarantors hereby agrees that in
the event of a default in payment of the
principal of, or premium, if any, or interest on the Securities of such series, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal
proceedings
48
may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06,
by the Holders, on the terms and conditions set forth in this Indenture, directly against such
Subsidiary Guarantor to enforce such Guarantee without first proceeding against the Company or any
other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article X shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited
by any occurrence or condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in,
any of the obligations and liabilities of the Company or any of the Subsidiary Guarantors contained
in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of
the liability of the Company, any of the Subsidiary Guarantors or any of their estates in
bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present
or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the
decision of any court, (iii) the assertion or exercise by the Company, any of the Subsidiary
Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their
delay in or failure to assert or exercise any such rights or remedies, (iv) the assignment or the
purported assignment of any property as security for the Securities, including all or any part of
the rights of the Company or any of the Subsidiary Guarantors under this Indenture, (v) the
extension of the time for payment by the Company or any of the Subsidiary Guarantors of any
payments or other sums or any part thereof owing or payable under any of the terms and provisions
of the Securities or this Indenture or of the time for performance by the Company or any of the
Subsidiary Guarantors of any other obligations under or arising out of any such terms and
provisions or the extension or the renewal of any thereof, (vi) the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of the Company or any of the
Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all of the assets, marshaling of
assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other similar proceeding
affecting, the Company or any of the Subsidiary Guarantors or any of their respective assets, or
the disaffirmance of the Securities, the Guarantees or this Indenture in any such proceeding,
(viii) the release or discharge of the Company or any of the Subsidiary Guarantors from the
performance or observance of any agreement, covenant, term or condition contained in any of such
instruments by operation of law, (ix) the unenforceability of the Securities of such series, the
related Guarantees or this Indenture or (x) any other circumstances (other than payment in full or
discharge of all amounts guaranteed pursuant to the related Guarantees) which might otherwise
constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the
Company or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing its Guarantee may be transferred and that the benefit
of its obligations hereunder shall extend to each holder of any agreement, instrument or document
evidencing its Guarantee without notice
to it and (iii) covenants that its Guarantee will not be discharged except by complete
performance of such Guarantee. Each of the Subsidiary Guarantors further agrees that if at any
49
time all or any part of any payment theretofore applied by any Person to its Guarantee is, or must
be, rescinded or returned for any reason whatsoever, including, without limitation, the insolvency,
bankruptcy or reorganization of the Company or any of the Subsidiary Guarantors, such Guarantee
shall, to the extent that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and such Guarantee shall continue to be
effective or be reinstated, as the case may be, as though such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to
the provisions of this Indenture;
provided, however
, that such Subsidiary Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until all of the Securities of such series and the related Guarantees shall have been
paid in full or discharged.
SECTION 10.02
Execution and Delivery of Guarantees
.
To further evidence its Guarantee set forth in Section 10.01, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Guarantee, substantially in the form
attached hereto as Annex A, shall be endorsed on each Security of the series entitled to the
benefits of such Guarantee authenticated and delivered by the Trustee, which notation of Guarantee
shall be executed by either manual or facsimile signature of an Officer of such Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that its Guarantee set forth in Section
10.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security
a notation relating to such Guarantee. If any Officer of such Subsidiary Guarantor whose signature
is on this Indenture or a notation of Guarantee no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, the Guarantee of such Security shall be
valid nevertheless. The delivery of any Security of a series entitled to the benefits of a
Guarantee under this Article X by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Subsidiary
Guarantor.
SECTION 10.03
Limitation on Liability of the Subsidiary Guarantors
.
Each Subsidiary Guarantor and by its acceptance hereof each Holder of a Security of a series
entitled to the benefits of a Guarantee under this Article X hereby confirms that it is the
intention of all such parties that the guarantee by such Subsidiary Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state
law. To effectuate the foregoing intention, the Holders of a Security entitled to the benefits of
such Guarantee and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor
and 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 Guarantee, result in the
obligations of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent
conveyance or fraudulent transfer under federal or state law.
50
SECTION 10.04
Release of Subsidiary Guarantors from Guarantee
.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set forth in this Section
10.04. Provided that no Default shall have occurred and shall be continuing under this Indenture,
any Guarantee incurred by a Subsidiary Guarantor pursuant to this Article X shall be
unconditionally released and discharged (i) automatically upon (A) any sale, exchange or transfer,
whether by way of merger or otherwise, to any Person that is not an Affiliate of the Company, of
all of the Companys direct or indirect equity interests in such Subsidiary Guarantor (
provided
such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger of such
Subsidiary Guarantor into the Company or any other Subsidiary Guarantor or the liquidation and
dissolution of such Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture) or (ii) following delivery of a written notice of such release or discharge by the
Company to the Trustee, upon the release or discharge of all guarantees by such Subsidiary
Guarantor of any Debt of the Company other than obligations arising under this Indenture and any
Securities issued hereunder, except a discharge or release by or as a result of payment under such
guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary
Guarantor from its Guarantee upon receipt of a written request of the Company accompanied by an
Officers Certificate and an Opinion of Counsel that the Subsidiary Guarantor is entitled to such
release in accordance with the provisions of this Indenture. If the Subsidiary Guarantor is not so
released it shall remain liable for the full amount of principal of (and premium, if any, on) and
interest on the Securities entitled to the benefits of such Guarantee as provided in this
Indenture, subject to the limitations of Section 10.03.
SECTION 10.05
Contribution
. In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors hereby agree, inter se, that in the event any
payment or distribution is made by any Subsidiary Guarantor (a Funding Guarantor) under its
Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Subsidiary
Guarantor (as applicable) in a pro rata amount based on the net assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding
Guarantor in discharging the Companys obligations with respect to the Securities of a series
entitled to the benefits of a Guarantee under this Article X or any other Subsidiary Guarantors
obligations with respect to its Guarantee of such series of Securities.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.
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SECTION 11.02
Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested), telex, facsimile or overnight air courier guaranteeing
next day delivery, to the others address:
If to the Company or any Subsidiary Guarantor:
Carrizo Oil & Gas, Inc.
1000 Louisiana, Suite 1500
Houston, Texas 77002
Attn: S.P. Johnson IV
Telephone: (713) 328-1000
Facsimile: (713) 358-6440
If to the Trustee:
Wells Fargo Bank, National Association
Corporate Trust Services
1445 Ross Avenue 2nd Floor
Dallas, Texas 75202-2812
Attn: Patrick Giordano
Telephone: (214) 740-1573
Facsimile: (214) 777-4086
The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holders address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.
If the Company or a Subsidiary Guarantor mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
52
All notices or communications, including without limitation notices to the Trustee, the
Company or a Subsidiary Guarantor by Holders, shall be in writing, except as otherwise set forth
herein.
In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.
SECTION 11.03
Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Company, the Subsidiary Guarantors, the
Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
SECTION 11.04
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or a Subsidiary Guarantor to the Trustee to
take any action under this Indenture, the Company or such Subsidiary Guarantor shall, if requested
by the Trustee, furnish to the Trustee at the expense of the Company or such Subsidiary Guarantor,
as the case may be:
(1) an Officers Certificate (which shall include the statements set forth in
Section 11.05) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 11.05 hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 11.05
Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
53
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
SECTION 11.06
Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 11.07
Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 11.08
No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of the Company, a
Subsidiary Guarantor or the Trustee, as such, shall not have any liability for any obligations of
the Company under the Securities, for the obligations of any Subsidiary Guarantor under any
Guarantee, or for any obligations of the Company, any Subsidiary Guarantor or the Trustee under
this Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such liability. The waiver
and release shall be part of the consideration for the issue of Securities.
SECTION 11.09
Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 11.10
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company, any Subsidiary Guarantor or any other Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 11.11
Successors.
All agreements of the Company and each of the Subsidiary Guarantors in this Indenture and the
Securities shall bind their successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 11.12
Severability.
In case any provision in this Indenture or in the Securities or in any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
54
provisions shall, to the fullest extent permitted by applicable law, not in any way be affected or
impaired thereby.
SECTION 11.13
Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 11.14
Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
55
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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CARRIZO OIL & GAS, INC.
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By:
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Name:
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Title:
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CCBM, INC.
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By:
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Name:
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Title:
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CLLR, INC.
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By:
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Name:
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Title:
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HONDO PIPELINE, INC.
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
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By:
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Name:
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Title:
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56
ANNEX A
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article X of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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[NAME OF SUBSIDIARY GUARANTOR]
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By:
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Name:
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Title:
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A-1
EXHIBIT 4.9
FORM OF SUBORDINATED INDENTURE
CARRIZO OIL & GAS, INC.
as Issuer
and
THE POTENTIAL SUBSIDIARY GUARANTORS
LISTED ON THE SIGNATURE PAGES HERETO
as Potential Subsidiary Guarantors
and
WELLS
FARGO BANK, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of ___ ___, ___
Subordinated Debt Securities
CARRIZO OIL & GAS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of ___ ___, ___
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Section of
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Trust Indenture
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Section(s) of
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Act of 1939
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Indenture
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§ 310
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(a)(1)
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7.10
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(a)(2)
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7.10
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(a)(5)
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7.10
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(b)
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7.08, 7.10
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§ 311
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(a)
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7.11
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(b)
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7.11
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(c)
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Not Applicable
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§ 312
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(a)
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2.07
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(b)
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12.03
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(c)
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12.03
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§ 313
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(a)
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7.06
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(b)
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7.06
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(c)
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7.06
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(d)
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7.06
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§ 314
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(a)
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4.03, 4.04
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(b)
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Not Applicable
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(c)(1)
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12.04
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(c)(2)
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12.04
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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12.05
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§ 315
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(a)
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7.01(b)
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(b)
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7.05
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(c)
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7.01(a)
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(d)
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7.01(c)
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(d)(1)
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7.01(c)(1)
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(d)(2)
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7.01(c)(2)
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(d)(3)
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7.01(c)(3)
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(e)
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6.11
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§ 316
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(a)(1)(A)
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6.05
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(a)(1)(B)
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6.04
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(a)(2)
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Not Applicable
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(a)(last sentence)
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2.11
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(b)
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6.07
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§ 317
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(a)(1)
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6.08
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(a)(2)
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6.09
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(b)
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2.06
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§ 318
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(a)
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12.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
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1
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SECTION 1.01
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Definitions
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1
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SECTION 1.02
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Other Definitions
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6
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SECTION 1.03
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Incorporation by Reference of Trust Indenture Act
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6
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SECTION 1.04
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Rules of Construction
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7
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ARTICLE II THE SECURITIES
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7
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SECTION 2.01
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Amount Unlimited; Issuable in Series
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7
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SECTION 2.02
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Denominations
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10
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SECTION 2.03
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Forms Generally
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11
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SECTION 2.04
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Execution, Authentication, Delivery and Dating
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11
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SECTION 2.05
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Registrar and Paying Agent
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13
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SECTION 2.06
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Paying Agent to Hold Money in Trust
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13
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SECTION 2.07
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Holder Lists
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14
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SECTION 2.08
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Transfer and Exchange
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14
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SECTION 2.09
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Replacement Securities
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15
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SECTION 2.10
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Outstanding Securities
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15
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SECTION 2.11
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Original Issue Discount, Foreign-Currency Denominated and Treasury Securities
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15
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SECTION 2.12
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Temporary Securities
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16
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SECTION 2.13
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Cancellation
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16
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SECTION 2.14
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Payments; Defaulted Interest
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16
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SECTION 2.15
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Persons Deemed Owners
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17
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SECTION 2.16
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Computation of Interest
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17
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SECTION 2.17
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Global Securities; Book-Entry Provisions
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17
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ARTICLE III REDEMPTION
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19
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SECTION 3.01
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Applicability of Article
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19
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SECTION 3.02
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Notice to the Trustee
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19
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SECTION 3.03
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Selection of Securities To Be Redeemed
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20
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SECTION 3.04
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Notice of Redemption
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20
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SECTION 3.05
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Effect of Notice of Redemption
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21
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SECTION 3.06
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Deposit of Redemption Price
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21
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SECTION 3.07
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Securities Redeemed or Purchased in Part
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22
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SECTION 3.08
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Purchase of Securities
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22
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SECTION 3.09
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Mandatory and Optional Sinking Funds
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22
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SECTION 3.10
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Satisfaction of Sinking Fund Payments with Securities
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22
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SECTION 3.11
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Redemption of Securities for Sinking Fund
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23
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i
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Page
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ARTICLE IV COVENANTS
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23
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SECTION 4.01
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Payment of Securities
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23
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SECTION 4.02
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Maintenance of Office or Agency
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24
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SECTION 4.03
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SEC Reports; Financial Statements
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24
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SECTION 4.04
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Compliance Certificate
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25
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SECTION 4.05
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Corporate Existence
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25
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SECTION 4.06
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Waiver of Stay, Extension or Usury Laws
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25
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SECTION 4.07
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Additional Amounts
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26
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ARTICLE V SUCCESSORS
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26
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SECTION 5.01
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Limitations on Mergers and Consolidations
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26
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SECTION 5.02
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Successor Person Substituted
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27
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ARTICLE VI DEFAULTS AND REMEDIES
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27
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SECTION 6.01
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Events of Default
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27
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SECTION 6.02
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Acceleration
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29
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SECTION 6.03
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Other Remedies
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30
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SECTION 6.04
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Waiver of Defaults
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30
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SECTION 6.05
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Control by Majority
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30
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SECTION 6.06
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Limitations on Suits
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31
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SECTION 6.07
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Rights of Holders to Receive Payment
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31
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SECTION 6.08
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Collection Suit by Trustee
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31
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SECTION 6.09
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Trustee May File Proofs of Claim
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|
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32
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SECTION 6.10
|
|
Priorities
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32
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SECTION 6.11
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Undertaking for Costs
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33
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ARTICLE VII TRUSTEE
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33
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SECTION 7.01
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Duties of Trustee
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33
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SECTION 7.02
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Rights of Trustee
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34
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SECTION 7.03
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May Hold Securities
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35
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SECTION 7.04
|
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Trustees Disclaimer
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35
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SECTION 7.05
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Notice of Defaults
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35
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SECTION 7.06
|
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Reports by Trustee to Holders
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35
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SECTION 7.07
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Compensation and Indemnity
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36
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SECTION 7.08
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Replacement of Trustee
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36
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SECTION 7.09
|
|
Successor Trustee by Merger, etc.
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38
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SECTION 7.10
|
|
Eligibility; Disqualification
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38
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SECTION 7.11
|
|
Preferential Collection of Claims Against the Company or the Subsidiary Guarantor
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39
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ARTICLE VIII DISCHARGE OF INDENTURE
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39
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SECTION 8.01
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Termination of the Companys or the Subsidiary Guarantors Obligations
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39
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SECTION 8.02
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Application of Trust Money
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43
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SECTION 8.03
|
|
Repayment to Company
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43
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SECTION 8.04
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Reinstatement
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43
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ii
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Page
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ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS
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44
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SECTION 9.01
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Without Consent of Holders
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44
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SECTION 9.02
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With Consent of Holders
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45
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SECTION 9.03
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Compliance with Trust Indenture Act
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|
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47
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SECTION 9.04
|
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Revocation and Effect of Consents
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47
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SECTION 9.05
|
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Notation on or Exchange of Securities
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|
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48
|
|
SECTION 9.06
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Trustee to Sign Amendments, etc.
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48
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|
ARTICLE X SUBORDINATION OF SECURITIES AND GUARANTEE
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48
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|
SECTION 10.01
|
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Securities and Guarantee Subordinated to Senior Debt
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|
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48
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SECTION 10.02
|
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No Payment on Securities in Certain Circumstances
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49
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SECTION 10.03
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Securities and Guarantee Subordinated to Prior Payment of All Senior Debt on Dissolution, Liquidation or Reorganization
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50
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SECTION 10.04
|
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Subrogation to Rights of Holders of Senior Debt
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51
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SECTION 10.05
|
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Obligations of the Company and the Subsidiary Guarantor Unconditional
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51
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SECTION 10.06
|
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Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice
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52
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|
SECTION 10.07
|
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Application by Trustee of Amounts Deposited with It
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52
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|
SECTION 10.08
|
|
Subordination Rights Not Impaired by Acts or Omissions of the Company, the
Subsidiary Guarantor or Holders of Senior Debt
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53
|
|
SECTION 10.09
|
|
Trustee to Effectuate Subordination of Securities
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|
|
53
|
|
SECTION 10.10
|
|
Right of Trustee to Hold Senior Debt
|
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|
54
|
|
SECTION 10.11
|
|
Article X Not to Prevent Events of Default
|
|
|
54
|
|
SECTION 10.12
|
|
No Fiduciary Duty of Trustee to Holders of Senior Debt
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|
54
|
|
SECTION 10.13
|
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Article Applicable to Paying Agent
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54
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|
ARTICLE XI GUARANTEE
|
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54
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SECTION 11.01
|
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Guarantee
|
|
|
54
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SECTION 11.02
|
|
Execution and Delivery of Guarantee
|
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|
56
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|
SECTION 11.03
|
|
Limitation on Liability of the Subsidiary Guarantor
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57
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SECTION 11.04
|
|
Release of Subsidiary Guarantors from Guarantee
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57
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|
ARTICLE XII MISCELLANEOUS
|
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|
58
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SECTION 12.01
|
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Trust Indenture Act Controls
|
|
|
58
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|
SECTION 12.02
|
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Notices
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|
|
58
|
|
SECTION 12.03
|
|
Communication by Holders with Other Holders
|
|
|
59
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|
SECTION 12.04
|
|
Certificate and Opinion as to Conditions Precedent
|
|
|
60
|
|
SECTION 12.05
|
|
Statements Required in Certificate or Opinion
|
|
|
60
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|
SECTION 12.06
|
|
Rules by Trustee and Agents
|
|
|
60
|
|
SECTION 12.07
|
|
Legal Holidays
|
|
|
60
|
|
SECTION 12.08
|
|
No Recourse Against Others
|
|
|
61
|
|
SECTION 12.09
|
|
Governing Law
|
|
|
61
|
|
SECTION 12.10
|
|
No Adverse Interpretation of Other Agreements
|
|
|
61
|
|
SECTION 12.11
|
|
Successors
|
|
|
61
|
|
SECTION 12.12
|
|
Severability
|
|
|
61
|
|
SECTION 12.13
|
|
Counterpart Originals
|
|
|
61
|
|
SECTION 12.14
|
|
Table of Contents, Headings, etc.
|
|
|
61
|
|
iii
INDENTURE dated as of ___ ___, ___between Carrizo Oil & Gas, Inc., a Texas corporation
(the Company), the potential subsidiary guarantors listed on the signature pages hereto (the
Potential Subsidiary Guarantors), and Wells Fargo Bank, National Association, as trustee (the
Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable
benefit of the Holders of the Companys unsecured subordinated debentures, notes or other evidences
of indebtedness (the Securities), and the related Guarantees (as hereinafter defined), to be
issued from time to time in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01
Definitions.
Additional Amounts means any additional amounts required by the express terms of a Security
or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto,
to be paid by the Company with respect to certain taxes, assessments or other governmental charges
imposed on certain Holders and that are owing to such Holders.
Affiliate of any specified Person means any other Person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, such specified Person. For
purposes of this definition, control of a Person shall mean 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 shall have
meanings correlative to the foregoing.
Agent means any Registrar or Paying Agent.
Bankruptcy Law means Title 11 of the United States Code or any similar federal, state or
foreign law for the relief of debtors.
Board of Directors means the Board of Directors of the Company or any committee thereof duly
authorized, with respect to any particular matter, to act by or on behalf of the Board of Directors
of the Company.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Business Day means any day that is not a Legal Holiday.
Capitalized Lease Obligation of any Person means any obligation of such Person to pay rent
or other amounts under a lease of property, real or personal, that is required to be capitalized
for financial reporting purposes in accordance with GAAP; and the amount of such obligation shall
be the capitalized amount thereof determined in accordance with GAAP.
1
Company means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor Person;
provided, however,
that for
purposes of any provision contained herein which is required by the TIA, Company shall also mean
each other obligor (if any) on the Securities of a series.
Company Order and Company Request mean, respectively, a written order or request signed in
the name of the Company by two Officers of the Company, and delivered to the Trustee.
Corporate Trust Office of the Trustee means the office of the Trustee located at 1445 Ross
Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202, Attention: Patrick Giordano, and as may be
located at such other address as the Trustee may give notice to the Company.
Debt of any Person means, without duplication: (i) all indebtedness or obligations of such
Person for borrowed money (whether or not the recourse of the lender is to the whole of the assets
of such Person or only to a portion thereof); (ii) all obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments; (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement obligations with
respect thereto), other than standby letters of credit, bid or performance bonds and other
obligations issued by or for the account of such Person in the ordinary course of business, to the
extent not drawn or, to the extent drawn, if such drawing is reimbursed not later than the third
Business Day following demand for reimbursement; (iv) all obligations of such Person to pay the
deferred and unpaid purchase price of property or services, except trade payables and accrued
expenses incurred in the ordinary course of business; (v) all Capitalized Lease Obligations of such
Person; (vi) all Debt of others secured by a lien on any asset of such Person, whether or not such
Debt is assumed by such Person (provided that if the obligations so secured have not been assumed
in full by such Person or are not otherwise such Persons legal liability in full, then such
obligations shall be deemed to be in an amount equal to the greater of (a) the lesser of (1) the
full amount of such obligations and (2) the fair market value of such assets, as determined in good
faith by the Board of Directors of such Person, which determination shall be evidenced by a Board
Resolution, and (b) the amount of obligations as have been assumed by such Person or which are
otherwise such Persons legal liability); and (vii) all Debt of others (other than endorsements in
the ordinary course of business) guaranteed by such Person to the extent of such guarantee.
Default means any event, act or condition that is, or after notice or the passage of time or
both would be, an Event of Default.
Depositary means, with respect to the Securities of any series issuable or issued in whole
or in part in global form, the Person specified pursuant to Section 2.01 hereof as the initial
Depositary with respect to the Securities of such series, until a successor shall have been
appointed and become such pursuant to the applicable provision of this Indenture, and thereafter
Depositary shall mean or include such successor.
Dollar or $ means a dollar or other equivalent unit in such coin or currency of the United
States as at the time shall be legal tender for the payment of public and private debt.
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Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor
statute.
GAAP means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as may be approved by a
significant segment of the accounting profession of the United States, as in effect from time to
time.
Global Security means a Security that is issued in global form in the name of the Depositary
with respect thereto or its nominee.
Government Obligations means, with respect to a series of Securities, direct obligations of
the government that issues the currency in which the Securities of the series are payable for the
payment of which the full faith and credit of such government is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of such government,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by such
government.
Guarantee means the guarantee of the Companys obligations under the Securities of a series
by a Subsidiary Guarantor (specified with respect to such series as contemplated by Section
2.01(9)) as provided in Article XI.
Holder means a Person in whose name a Security is registered.
Indenture means this Indenture as amended or supplemented from time to time pursuant to the
provisions hereof, and includes the terms of a particular series of Securities established as
contemplated by Section 2.01.
interest means, with respect to an Original Issue Discount Security that by its terms bears
interest only after Maturity, interest payable after Maturity.
Interest Payment Date, when used with respect to any Security, shall have the meaning
assigned to such term in the Security as contemplated by Section 2.01.
Issue Date means, with respect to Securities of a series, the date on which the Securities
of such series are originally issued under this Indenture.
Legal Holiday means a Saturday, a Sunday or a day on which banking institutions in any of
The City of New York, New York; Houston, Texas or a Place of Payment are authorized or obligated by
law, regulation or executive order to remain closed.
Maturity means, with respect to any Security, the date on which the principal of such
Security or an installment of principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of acceleration, call for redemption or
otherwise.
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Officer means the Chairman of the Board, the President, any Vice Chairman of the Board, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary or any Assistant Secretary of a Person.
Officers Certificate means a certificate signed by two Officers of a Person.
Opinion of Counsel means a written opinion from legal counsel who is acceptable to the
Trustee. Such counsel may be an employee of or counsel to the Company or the Trustee.
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 6.02.
Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint stock company, trust, unincorporated
organization or government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
Place of Payment means, with respect to the Securities of any series, the place or places
where the principal of, premium (if any) and interest on and any Additional Amounts with respect to
the Securities of that series are payable as specified in accordance with Section 2.01 subject to
the provisions of Section 4.02.
principal of a Security means the principal of the Security plus, when appropriate, the
premium, if any, on the Security.
Redemption Date means, with respect to any Security to be redeemed, the date fixed for such
redemption by or pursuant to this Indenture.
Redemption Price means, with respect to any Security to be redeemed, the price at which it
is to be redeemed pursuant to this Indenture.
Responsible Officer means 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 persons knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.
Rule 144A Securities means Securities of a series designated pursuant to Section 2.01 as
entitled to the benefits of Section 4.03(b).
SEC means the Securities and Exchange Commission.
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Securities has the meaning stated in the preamble of this Indenture and more particularly
means any Securities authenticated and delivered under this Indenture.
Security Custodian means, with respect to Securities of a series issued in global form, the
Trustee for Securities of such series, as custodian with respect to the Securities of such series,
or any successor entity thereto.
Senior Debt of the Company, unless otherwise provided with respect to the Securities of a
series as contemplated by Section 2.01, means (i) all Debt of the Company, and, in the case of the
Guarantee, the Subsidiary Guarantor, whether currently outstanding or hereafter created, incurred
or assumed, unless, by the terms of the instrument creating or evidencing such Debt or pursuant to
which such Debt is outstanding, it is provided that such Debt is not superior in right of payment
to the Securities, in the case of the Company, or the Guarantee, in the case of the Subsidiary
Guarantor, or to other Debt which is
pari passu
with or subordinated to the Securities, and (ii)
any modifications, refunding, deferrals, renewals or extensions of any such Debt or any securities,
notes or other evidences of Debt issued in exchange for such Debt;
provided
that, unless otherwise
provided with respect to the Securities of a series as contemplated by Section 2.01, in no event
shall Senior Debt include (a) Debt evidenced by the Securities or any Guarantee, (b) Debt of the
Company or the Subsidiary Guarantor owed or owing to any other Subsidiary or any officer, director
or employee of the Company, the Subsidiary Guarantor or any Subsidiary, (c) Debt to trade creditors
or (d) any liability for taxes owed or owing by the Company.
Significant Subsidiary means a Subsidiary of the Company that is a significant subsidiary
of the Company as such term is defined in Rule 1-02(w) of Regulation S-X as of the date hereof.
Stated Maturity means, when used with respect to any Security or any installment of
principal thereof or interest thereon, the date specified in such Security as the fixed date on
which the principal of such Security or such installment of principal or interest is due and
payable.
Subsidiary means a Person at least a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For the purposes of this definition, voting stock
means stock having voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
Subsidiary Guarantors means, with respect to any series of Securities, the Person or
Persons, if any, named in accordance with Section 2.01(9) as the Subsidiary Guarantors (i) in or
pursuant to a Board Resolution, and set forth, or determined in the manner provided, in an
Officers Certificate of the Company or in a Company Order, or (ii) in an indenture supplemental
hereto establishing the terms of such series of Securities until a successor Person or Persons
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
Subsidiary Guarantor with respect to such series of Securities shall mean such successor Person
or Persons, in any case until the Guarantee is released pursuant to the provisions of Article XI.
If a series of Securities does not have any Subsidiary Guarantors, all
5
references in this Indenture to the Subsidiary Guarantors shall be ignored with respect to
such series of Securities.
TIA means the Trust Indenture Act of 1939, as amended, as in effect on the date hereof.
Trustee means the Person named as such above until a successor replaces it in accordance
with the applicable provisions of this Indenture, and thereafter Trustee means 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 means the Trustee with respect to Securities of that
series.
United States means the United States of America (including the States and the District of
Columbia) and its territories and possessions, which include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
U.S. Government Obligations means Government Obligations with respect to Securities payable
in Dollars.
SECTION 1.02
Other Definitions.
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Defined
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Term
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in Section
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Agent Members
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2.17
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Bankruptcy Custodian
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6.01
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Conversion Event
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6.01
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covenant defeasance
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8.01
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Event of Default
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6.01
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Exchange Rate
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2.11
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Judgment Currency
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6.10
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legal defeasance
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8.01
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mandatory sinking fund payment
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3.09
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optional sinking fund payment
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3.09
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Paying Agent
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2.05
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Payment Default
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10.02
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Registrar
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2.05
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Required Currency
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6.10
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Successor
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5.01
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SECTION 1.03
Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture (and if the Indenture is not qualified under the TIA
at that time, as if it were so qualified unless otherwise provided). The following TIA terms used
in this Indenture have the following meanings:
Commission means the SEC.
6
indenture securities means the Securities.
indenture security holder means a Holder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company, any Subsidiary Guarantor or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the TIA, defined by a TIA reference to
another statute or defined by an SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.04
Rules of Construction.
Unless the context otherwise requires:
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(1)
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a term has the meaning assigned to it;
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(2)
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an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
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(3)
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or is not exclusive;
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(4)
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words in the singular include the plural, and in the plural
include the singular;
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(5)
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provisions apply to successive events and transactions; and
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(6)
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all references in this instrument to Articles and Sections are
references to the corresponding Articles and Sections in and of this
instrument.
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ARTICLE II
THE SECURITIES
SECTION 2.01
Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to a Board Resolution, and set forth, or determined in the manner provided, in an Officers
Certificate of the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
7
(1) the title of the Securities of the series (which shall distinguish the Securities
of the series from the Securities of all other series);
(2) if there is to be a limit, the 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 2.08, 2.09,
2.12, 2.17, 3.07 or 9.05 and except for any Securities which, pursuant to Section 2.04 or
2.17, are deemed never to have been authenticated and delivered hereunder);
provided,
however,
that unless otherwise provided in the terms of the series, the authorized aggregate
principal amount of such series may be increased before or after the issuance of any
Securities of the series by a Board Resolution (or action pursuant to a Board Resolution) to
such effect;
(3) whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in permanent global
form, as Global Securities or otherwise, and, if so, whether beneficial owners of interests
in any such Global Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global Security or Securities of
such series;
(4) the manner in which any interest payable on a temporary Global Security on any
Interest Payment Date will be paid if other than in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium (if any) on the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates, or the method of determination thereof, at which the Securities
of the series shall bear interest, if any, whether and under what circumstances Additional
Amounts with respect to such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such interest shall be payable
and the record date for the interest payable on any Securities on any Interest Payment Date,
or if other than provided herein, the Person to whom any interest on Securities of the
series shall be payable;
(7) the place or places where, subject to the provisions of Section 4.02, the principal
of, premium (if any) and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;
(8) the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series may be redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company must exercise any such
option, if different from those set forth herein;
8
(9) whether Securities of the series are entitled to the benefits of any Guarantee of
any Subsidiary Guarantor pursuant to this Indenture, the identity of any such Subsidiary
Guarantors and any terms of such Guarantee with respect to the Securities of the series in
addition to those set forth in Article XI, or any exceptions to or changes to those set
forth in Article XI;
(10) the obligation, if any, of the Company to redeem, purchase or repay Securities of
the series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices (whether denominated in
cash, securities or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid in whole or in part pursuant to such
obligation;
(11) if other than denominations of $1,000 and any integral multiple thereof, the
denomination in which any Securities of that series shall be issuable;
(12) if other than Dollars, the currency or currencies (including composite currencies)
or the form, including equity securities, other debt securities (including Securities),
warrants or any other securities or property of the Company or any other Person, in which
payment of the principal of, premium (if any) and interest on and any Additional Amounts
with respect to the Securities of the series shall be payable;
(13) if the principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies (including composite currencies)
other than that in which the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to Securities of such series as to which
such election is made shall be payable, and the periods within which and the terms and
conditions upon which such election is to be made;
(14) if the amount of payments of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series may be determined with
reference to any commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which such amounts shall be determined;
(15) if other than the entire principal amount thereof, the portion of the principal
amount of Securities of the series that shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 6.02;
(16) any additional means of satisfaction and discharge of this Indenture and any
additional conditions or limitations to discharge with respect to Securities of the series
and the related Guarantees, if any, pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
9
(17) any deletions or modifications of or additions to the Events of Default set forth
in Section 6.01 or covenants of the Company or any Subsidiary Guarantor set forth in Article
IV pertaining to the Securities of the series;
(18) any restrictions or other provisions with respect to the transfer or exchange of
Securities of the series, which may amend, supplement, modify or supersede those contained
in this Article II;
(19) if the Securities of the series are to be convertible into or exchangeable for
capital stock, other debt securities (including Securities), warrants, other equity
securities or any other securities or property of the Company, any Subsidiary Guarantor or
any other Person, at the option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or exchange;
(20) if the Securities of the series are to be entitled to the benefit of
Section 4.03(b) (and accordingly constitute Rule 144A Securities), that fact;
(21) any modifications to the definition of Senior Debt, to Article X or to the other
provisions regarding subordination with respect to the Securities of the series; and
(22) any other terms of the series (which terms shall not be prohibited by 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 in or pursuant to the Board Resolution referred to above
and (subject to Section 2.03) set forth, or determined in the manner provided, in the Officers
Certificate or Company Order referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action, together with such Board Resolution,
shall be set forth in an Officers Certificate or certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers
Certificate or Company Order setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior Debt as provided in Article
X and/or as specified as contemplated pursuant to this Section 2.01.
SECTION 2.02
Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as
contemplated by Section 2.01. In the absence of any such provisions with respect to the Securities
of any series, the Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
10
SECTION 2.03
Forms Generally.
The Securities of each series shall be in fully registered form and in substantially such form
or forms (including temporary or permanent global form) established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto. The Securities may have notations,
legends or endorsements required by law, securities exchange rule, the Companys certificate of
incorporation, bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or endorsement is in a form
acceptable to the Company). A copy of the Board Resolution establishing the form or forms of
Securities of any series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery of such Securities.
The definitive Securities of each series shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by the Officers
executing such Securities, as evidenced by their execution thereof.
The Trustees certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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Wells Fargo Bank, National Association,
as Trustee
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By:
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Authorized Signatory".
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SECTION 2.04
Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on behalf of the Company and, with
respect to any related Guarantee, an Officer of each Subsidiary Guarantor shall sign the Notation
of Guarantee on behalf of such Subsidiary Guarantor, in each case by manual or facsimile signature.
If an Officer of the Company whose signature is on a Security no longer holds that office at the
time the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this Indenture or the related
Guarantees, if any, or be valid or obligatory for any purpose until authenticated by the manual
signature of an authorized signatory of the Trustee, which signature shall be conclusive evidence
that the Security has been authenticated under this Indenture. Notwithstanding the foregoing, if
any Security has been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with Section 12.05 and need
not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have
been authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture or the related Guarantees, if any.
11
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company to the Trustee for
authentication, and the Trustee shall authenticate and deliver such Securities for original issue
upon a Company Order for the authentication and delivery of such Securities or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by Company Order. Such
order shall specify the amount of the Securities to be authenticated, the date on which the
original issue of Securities is to be authenticated, the name or names of the initial Holder or
Holders and any other terms of the Securities of such series not otherwise determined. If provided
for in such procedures, such Company Order may authorize (1) authentication and delivery of
Securities of such series for original issue from time to time, with certain terms (including,
without limitation, the Maturity dates or dates, original issue date or dates and interest rate or
rates) that differ from Security to Security and (2) may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company or its duly authorized agent, which
instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been established in or pursuant to
one or more Board Resolutions as permitted by Section 2.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred to above and the
other documents required by Section 12.04), and (subject to Section 7.01) shall be fully protected
in relying upon:
(a) an Officers Certificate setting forth the Board Resolution and, if applicable, an
appropriate record of any action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in conformity with the
provisions of this Indenture;
(ii) the terms of such Securities have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities and the related Guarantees, if any, when
authenticated and delivered by the Trustee and issued by the Company in the manner
and subject to any conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Company and the Subsidiary Guarantors,
respectively, enforceable against the Company and the Subsidiary Guarantors,
respectively, in accordance with their respective terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors generally, and the application
of general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
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If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers Certificate and Opinion of Counsel shall be delivered at or
before the time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such Securities if the issuance of such
Securities pursuant to this Indenture would affect the Trustees own rights, duties or immunities
under the Securities and this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the Company to authenticate
Securities. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company, any Subsidiary Guarantor or any other
Affiliate of the Company.
Each Security shall be dated the date of its authentication.
SECTION 2.05
Registrar and Paying Agent.
The Company shall maintain an office or agency for each series of Securities where Securities
of such series may be presented for registration of transfer or exchange (Registrar) and an
office or agency where Securities of such series may be presented for payment (Paying Agent).
The Registrar shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more additional paying
agents. The term Registrar includes any co-registrar and the term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any Registrar or Paying
Agent not a party to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as
Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06
Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of Holders or the Trustee all money held by the
Paying Agent for the payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may require a Paying Agent
to pay all money held by it to the Trustee and to account for any funds disbursed. The Company at
any time may require a Paying Agent to pay all money held
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by it to the Trustee and to account for any funds disbursed. Upon payment over to the Trustee
and upon accounting for any funds disbursed, the Paying Agent (if other than the Company, a
Subsidiary Guarantor or another Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund
for the benefit of the Holders all money held by it as Paying Agent. Each Paying Agent shall
otherwise comply with TIA § 317(b).
SECTION 2.07
Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest Payment Date with
respect to such series of Securities, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders of such series, and the Company shall otherwise comply with TIA § 312(a).
SECTION 2.08
Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided pursuant to Section 2.01:
When Securities of any series are presented to the Registrar with the request to register the
transfer of such Securities or to exchange such Securities for an equal principal amount of
Securities of the same series of like tenor and of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met;
provided, however
, that the
Securities presented or surrendered for registration of transfer or exchange shall be duly endorsed
or accompanied by a written instruction of transfer in form reasonably satisfactory to the
Registrar duly executed by the Holder thereof or by his attorney, duly authorized in writing, on
which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the Company shall execute and the Trustee
shall authenticate Securities at the Registrars written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any registration of transfer
or exchange (except as otherwise expressly permitted herein), but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental charge payable upon exchanges
pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in accordance
with the provisions of Section 2.04. Notwithstanding any other provisions of this Indenture to the
contrary, the Company shall not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article III, except the unredeemed
portion of any Security being redeemed in part, or (b) any Security during the period beginning 15
Business Days prior to the mailing of notice of any offer to repurchase Securities of the series
required pursuant to the terms thereof or
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of redemption of Securities of a series to be redeemed and ending at the close of business on
the day of mailing.
SECTION 2.09
Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if the Holder of a Security claims
that the Security has been destroyed, lost or stolen and the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of such Security, the Company
shall issue and the Trustee shall authenticate a replacement Security of the same series if the
Trustees requirements are met. If any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security. If required by the Trustee, any Subsidiary Guarantor or the
Company, such Holder must furnish an indemnity bond that is sufficient in the judgment of the
Trustee and the Company to protect the Company, each Subsidiary Guarantor, the Trustee, any Agent
or any authenticating agent from any loss that any of them may suffer if a Security is replaced.
The Company and the Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company.
SECTION 2.10
Outstanding Securities.
The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the
interest in a Global Security effected by the Trustee hereunder and those described in this
Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the principal amount of any Security is considered paid under Section 4.01, it ceases to be
outstanding and interest on it ceases to accrue.
A Security does not cease to be outstanding because the Company, a Subsidiary Guarantor or
another Affiliate of the Company or an Affiliate of a Subsidiary Guarantor holds the Security.
SECTION 2.11
Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.
In determining whether the Holders of the required principal amount of Securities have
concurred in any direction, amendment, supplement, waiver or consent, (a) the principal amount of
an Original Issue Discount Security shall be the principal amount thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.02, (b) the principal amount of a Security denominated in a foreign currency shall be the
Dollar equivalent, as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is
15
certified for customs purposes by the Federal Reserve Bank of New York (the Exchange Rate)
on the date of original issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent, as determined by the Company by reference
to the Exchange Rate on the date of original issuance of such Security, of the amount determined as
provided in (a) above), of such Security and (c) Securities owned by the Company, a Subsidiary
Guarantor or any other obligor upon the Securities or any Affiliate of the Company or a Subsidiary
Guarantor or of such other obligor shall be disregarded, except that, for the purpose of
determining whether the Trustee shall be protected in relying upon any such direction, amendment,
supplement, waiver or consent, only Securities that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded.
SECTION 2.12
Temporary Securities.
Until definitive Securities of any series are ready for delivery, the Company may prepare and
the Trustee shall authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate definitive Securities in exchange for temporary Securities. Until
so exchanged, the temporary Securities shall in all respects be entitled to the same benefits under
this Indenture as definitive Securities.
SECTION 2.13
Cancellation.
The Company or any Subsidiary Guarantor at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange, payment or redemption or for credit
against any sinking fund payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or cancellation or for credit
against any sinking fund. Unless the Company shall direct in writing that canceled Securities be
returned to it, after written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the Trustee, and the
Trustee shall maintain a record of their disposal. The Company may not issue new Securities to
replace Securities that have been paid or that have been delivered to the Trustee for cancellation.
SECTION 2.14
Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01, interest (except defaulted
interest) on any Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Persons who are registered Holders of that Security at
the close of business on the record date next preceding such Interest Payment Date, even if such
Securities are canceled after such record date and on or before such Interest Payment Date. The
Holder must surrender a Security to a Paying Agent to collect principal payments. Unless otherwise
provided with respect to the Securities of any series, the Company will pay the principal of,
premium (if any) and interest on and any Additional Amounts with respect to the Securities in
Dollars. Such amounts shall be payable at the offices of the Trustee or any Paying Agent,
provided
that at the option of the Company, the Company may pay such
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amounts (1) by wire transfer with respect to Global Securities or (2) by check payable in such
money mailed to a Holders registered address with respect to any Securities.
If the Company defaults in a payment of interest on the Securities of any series, the Company
shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest on the
defaulted interest, in each case at the rate provided in the Securities of such series and in
Section 4.01. The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date selected by the
Company, the Company (or the Trustee, in the name of and at the expense of the Company upon 20
days prior written notice from the Company setting forth such special record date and the interest
amount to be paid) shall mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15
Persons Deemed Owners.
The Company, the Subsidiary Guarantors, the Trustee, any Agent and any authenticating agent
may treat the Person in whose name any Security is registered as the owner of such Security for the
purpose of receiving payments of principal of, premium (if any) or interest on or any Additional
Amounts with respect to such Security and for all other purposes. None of the Company, any
Subsidiary Guarantor, the Trustee, any Agent or any authenticating agent shall be affected by any
notice to the contrary.
SECTION 2.16
Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a year comprising
twelve 30-day months.
SECTION 2.17
Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a Global Security, as contemplated by
Section 2.01, then, notwithstanding clause (10) of Section 2.01 and the provisions of Section 2.02,
any such Global Security shall represent such of the outstanding Securities of such series as shall
be specified therein and may provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, transfers or redemptions. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of outstanding Securities represented thereby
shall be made by the Trustee (i) in such manner and upon instructions given by such Person or
Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee
pursuant to Section 2.04 or (ii) otherwise in accordance with written instructions or such other
written form of instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest in such Global
Security. Subject to the provisions of Section 2.04 and, if applicable, Section 2.12, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such Security or in the applicable Company
Order. With respect to the Securities of
17
any series that are represented by a Global Security, the Company and the Subsidiary
Guarantors authorize the execution and delivery by the Trustee of a letter of representations or
other similar agreement or instrument in the form customarily provided for by the Depositary
appointed with respect to such Global Security. Any Global Security may be deposited with the
Depositary or its nominee, or may remain in the custody of the Trustee or the Security Custodian
therefor pursuant to a FAST Balance Certificate Agreement or similar agreement between the Trustee
and the Depositary. If a Company Order has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 12.05 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary (Agent Members) shall have no rights under
this Indenture with respect to any Global Security held on their behalf by the Depositary, or the
Trustee or the Security Custodian as its custodian, or under such Global Security, and the
Depositary may be treated by the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian and any agent of the Company, any Subsidiary Guarantor, the Trustee or the Security
Custodian as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, (i) the registered holder of a Global Security of a series may grant
proxies and otherwise authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of Securities of such series is
entitled to take under this Indenture or the Securities of such series and (ii) nothing herein
shall prevent the Company, any Subsidiary Guarantor, the Trustee or the Security Custodian, or any
agent of the Company, any Subsidiary Guarantor, the Trustee or the Security Custodian, from giving
effect to any written certification, proxy or other authorization furnished by the Depositary or
shall impair, as between the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided pursuant to Section 2.01:
Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but
not in part, to the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if, and only if, either (1) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for the Global
Security and a successor Depositary is not appointed by the Company within 90 days of such notice,
(2) an Event of Default has occurred with respect to such series and is continuing and the
Registrar has received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver Securities within 30 days
of such request) or (3) the Company determines not to have the Securities represented by a Global
Security.
In connection with any transfer of a portion of the beneficial interests in a Global Security
to beneficial owners pursuant to this Section 2.17, the Registrar shall reflect on its books and
records the date and a decrease in the principal amount of the Global Security in an amount equal
to the principal amount of the beneficial interests in the Global Security to be transferred, and
the Company shall execute, and the Trustee upon receipt of a Company Order
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for the authentication and delivery of Securities shall authenticate and deliver, one or more
Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a Global Security to
beneficial owners pursuant to this Section 2.17, the Global Security shall be deemed to be
surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its
beneficial interests in the Global Security, an equal aggregate principal amount of Securities of
authorized denominations.
None of the Company, any Subsidiary Guarantor, or the Trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on account of, Securities by
the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating
to such Securities. None of the Company, any Subsidiary Guarantor, or the Trustee shall be liable
for any delay by the related Global Security Holder or the Depositary in identifying the beneficial
owners, and each such Person may conclusively rely on, and shall be protected in relying on,
instructions from such Global Security Holder or the Depositary for all purposes (including with
respect to the registration and delivery, and the respective principal amounts, of the Securities
to be issued).
The provisions of the last sentence of the third paragraph of Section 2.04 shall apply to any
Global Security if such Global Security was never issued and sold by the Company and the Company or
a Subsidiary Guarantor, delivers to the Trustee the Global Security together with written
instructions (which need not comply with Section 12.05 and need not be accompanied by an Opinion of
Counsel) with regard to the cancellation or reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the last sentence of the
third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14, unless otherwise specified as
contemplated by Section 2.01, payment of principal of, premium (if any) and interest on and any
Additional Amounts with respect to any Global Security shall be made to the Person or Persons
specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01
Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.
SECTION 3.02
Notice to the Trustee.
If the Company elects to redeem Securities of any series pursuant to this Indenture, it shall
notify the Trustee of the Redemption Date and the principal amount of Securities of such series to
be redeemed. The Company shall so notify the Trustee at least 45
19
days before the Redemption Date (unless a shorter notice shall be satisfactory to the Trustee)
by delivering to the Trustee an Officers Certificate stating that such redemption will comply with
the provisions of this Indenture and of the Securities of such series. Any such notice may be
canceled at any time prior to the mailing of such notice of such redemption to any Holder and shall
thereupon be void and of no effect. A redemption or notice thereof may be subject to one or more
conditions.
SECTION 3.03
Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all of the Securities
of such series of a specified tenor are to be redeemed), the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the Trustee from the
outstanding Securities of such series (and tenor) not previously called for redemption, either at
random, by lot or by such other method as the Trustee shall deem fair and appropriate and that may
provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized denomination for
Securities of that series or of the principal amount of Global Securities of such series.
The Trustee shall promptly notify the Company and the Registrar in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context otherwise requires, all provisions relating
to redemption of Securities shall relate, in the case of any of the Securities redeemed or to be
redeemed only in part, to the portion of the principal amount thereof which has been or is to be
redeemed.
SECTION 3.04
Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less than
30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed,
at the address of such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company and the Subsidiary Guarantors default in making the
redemption payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of such Securities is
to receive payment of the Redemption Price upon surrender to the Paying Agent of the
Securities redeemed;
20
(4) if any Security is to be redeemed in part, the portion of the principal amount
thereof to be redeemed and that on and after the Redemption Date, upon surrender for
cancellation of such Security to the Paying Agent, a new Security or Securities in the
aggregate principal amount equal to the unredeemed portion thereof will be issued without
charge to the Holder;
(5) that Securities called for redemption must be surrendered to the Paying Agent to
collect the Redemption Price and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if such is the case;
(7) the CUSIP number, if any, relating to such Securities; and
(8) if the redemption or notice thereof is subject to one or more conditions, a
statement to such effect and the condition or conditions precedent.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys written request, by the Trustee in the name and at the
expense of the Company.
SECTION 3.05
Effect of Notice of Redemption.
Once notice of redemption is mailed, unless the redemption or notice thereof is subject to one
or more conditions as specified in the notice, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender to the Paying Agent,
such Securities called for redemption shall be paid at the Redemption Price, but interest
installments whose maturity is on or prior to such Redemption Date will be payable on the relevant
Interest Payment Dates to the Holders of record at the close of business on the relevant record
dates specified pursuant to Section 2.01.
SECTION 3.06
Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any Redemption Date, the Company or a
Subsidiary Guarantor shall deposit with the Trustee or the Paying Agent (or, if the Company or a
Subsidiary Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in
Section 2.06) an amount of money in same day funds sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued interest on and any
Additional Amounts with respect to, the Securities or portions thereof which are to be redeemed on
that date, other than Securities or portions thereof called for redemption on that date which have
been delivered by the Company or a Subsidiary Guarantor to the Trustee for cancellation.
If the Company or a Subsidiary Guarantor complies with the preceding paragraph, then, unless
the Company or the Subsidiary Guarantors default in the payment of such Redemption Price, interest
on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Securities are presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for the right to receive the
Redemption Price upon surrender of such Securities. If any Security
21
called for redemption shall not be so paid upon surrender thereof for redemption, the
principal, premium, if any, any Additional Amounts, and, to the extent lawful, accrued interest
thereon shall, until paid, bear interest from the Redemption Date at the rate specified pursuant to
Section 2.01 or provided in the Securities or, in the case of Original Issue Discount Securities,
such Securities yield to maturity.
SECTION 3.07
Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be redeemed in part, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities, of the same series and of any authorized denomination
as requested by such Holder in aggregate principal amount equal to, and in exchange for, the
unredeemed portion of the principal of the Security so surrendered that is not redeemed.
SECTION 3.08
Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01, the Company, any Subsidiary
Guarantor or any Affiliate of the Company or any Subsidiary Guarantor may, subject to applicable
law, at any time purchase or otherwise acquire Securities in the open market or by private
agreement. Any such acquisition shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Subsidiary Guarantor may be delivered to the Trustee and, upon such
delivery, the indebtedness represented thereby shall be deemed to be satisfied. Section 2.13 shall
apply to all Securities so delivered.
SECTION 3.09
Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a mandatory sinking fund payment, and any payment in excess of
such minimum amount provided for by the terms of Securities of any series is herein referred to as
an optional sinking fund payment. Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction as provided in
Section 3.10. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series and by this Article III.
SECTION 3.10
Satisfaction of Sinking Fund Payments with Securities.
The Company or a Subsidiary Guarantor may deliver outstanding Securities of a series (other
than any previously called for redemption) and may apply as a credit Securities of a series that
have been redeemed either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such series
of Securities;
provided
that such Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the Redemption
22
Price specified in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.11
Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be satisfactory to the Trustee) to
each sinking fund payment date for any series of Securities, the Company will deliver to the
Trustee an Officers Certificate of the Company specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to Section 3.10 and
will also deliver or cause to be delivered to the Trustee any Securities to be so delivered.
Failure of the Company to timely deliver or cause to be delivered such Officers Certificate and
Securities specified in this paragraph, if any, shall not constitute a default but shall constitute
the election of the Company (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 Company will make
no optional sinking fund payment with respect to such series as provided in this Section.
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 $100,000 (or the Dollar equivalent thereof based on the
applicable Exchange Rate on the date of original issue of the applicable Securities) or a lesser
sum if the Company 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 to
the date fixed for redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be carried over until a
sum in excess of $100,000 (or the Dollar equivalent thereof as aforesaid) is available. Not less
than 30 days before each such sinking fund payment date, the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense of the Company in
the manner provided in Section 3.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01
Payment of Securities.
The Company shall pay the principal of, premium (if any) and interest on and any Additional
Amounts with respect to the Securities of each series on the dates and in the manner provided in
the Securities of such series and in this Indenture. Principal, premium, interest and any
Additional Amounts shall be considered paid on the date due if the Paying Agent (other than the
Company, a Subsidiary Guarantor or other Subsidiary) holds on that date money deposited
23
by the Company or a Subsidiary Guarantor designated for and sufficient to pay all principal,
premium, interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and premium (if any), at a rate equal to the then applicable
interest rate on the Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of
interest and any Additional Amount (without regard to any applicable grace period) at the same rate
to the extent lawful.
SECTION 4.02
Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or
agency (which may be an office of the Trustee, the Registrar or the Paying Agent) where Securities
of that series may be presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the Company or a
Subsidiary Guarantor in respect of the Securities of that series and this Indenture may be served.
Unless otherwise designated by the Company by written notice to the Trustee and the Subsidiary
Guarantors, such office or agency shall be the office of the Trustee in The City of New York, which
on the date hereof is located at 1445 Ross Avenue, 2nd Floor, MAC T5303-02J, Dallas, TX 75202. The
Company will give prompt written notice to the Trustee and the Subsidiary Guarantors of the
location, and any change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and
the Subsidiary Guarantors with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations;
provided, however
, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 4.03
SEC Reports; Financial Statements.
(a) If the Company is subject to the requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall file with the Trustee, within 15 days after it files the same with the SEC,
copies of the annual reports and the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If
this Indenture is qualified under the TIA, but not otherwise, the Company shall also comply with
the provisions of TIA § 314(a). Delivery of such reports, information and documents to the Trustee
shall be for informational purposes only, and the Trustees receipt thereof shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Companys and the Subsidiary
24
Guarantors compliance with any of their covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers Certificates or certificates delivered pursuant to
Section 4.04).
(b) If the Company is not subject to the requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall furnish to all Holders of Rule 144A Securities and prospective purchasers of
Rule 144A Securities designated by the Holders of Rule 144A Securities, promptly upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) promulgated under the
Securities Act of 1933, as amended.
SECTION 4.04
Compliance Certificate.
(a) Each of the Company and the Subsidiary Guarantors shall deliver to the Trustee, within 120
days after the end of each fiscal year of the Company, a statement signed by an Officer of the
Company and each Subsidiary Guarantor, respectively, which need not constitute an Officers
Certificate, complying with TIA § 314(a)(4) and stating that in the course of performance by the
signing Officer of his duties as such Officer of the Company or such Subsidiary Guarantor, as the
case may be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Subsidiary Guarantor, as the case may be, of its obligations
under this Indenture, and further stating that to the best of his knowledge the Company or such
Subsidiary Guarantor, as the case may be, has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default in the performance or observance
of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which such Officer may have
knowledge and what action the Company or such Subsidiary Guarantor, as the case may be, is taking
or proposes to take with respect thereto).
(b) The Company or any Subsidiary Guarantor shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company or such Subsidiary
Guarantor, as the case may be, becoming aware of any Default or Event of Default under this
Indenture, an Officers Certificate specifying such Default or Event of Default and what action the
Company or such Subsidiary Guarantor, as the case may be, is taking or proposes to take with
respect thereto.
SECTION 4.05
Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its existence.
SECTION 4.06
Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Subsidiary Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any usury law or other law
that would prohibit or forgive it from paying all or any portion of the principal of or interest on
the Securities as contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) each of the Company and the Subsidiary Guarantors hereby
25
expressly waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
SECTION 4.07
Additional Amounts.
If the Securities of a series expressly provide for the payment of Additional Amounts, the
Company will pay to the Holder of any Security of such series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series, such mention shall
be deemed to include mention of the payment of Additional Amounts provided for in this Section 4.07
to the extent that, in such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to the provisions of this Section 4.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.
ARTICLE V
SUCCESSORS
SECTION 5.01
Limitations on Mergers and Consolidations.
Neither the Company nor any Subsidiary Guarantor shall, in any transaction or series of
transactions, consolidate with or merge into any Person, or sell, lease, convey, transfer or
otherwise dispose of all or substantially all of its assets to any Person (other than a
consolidation or merger of one or more Subsidiary Guarantors into the Company or a merger of
Subsidiary Guarantors, or a sale, lease, conveyance, transfer or other disposition of all or
substantially all of the assets of a Subsidiary Guarantor to the Company or of a Subsidiary
Guarantor to another Subsidiary Guarantor), unless:
(1) either (a) the Company or such Subsidiary Guarantor, as the case may be, shall be
the continuing Person or (b) the Person (if other than the Company or such Subsidiary
Guarantor) formed by such consolidation or into which the Company or such Subsidiary
Guarantor is merged, or to which such sale, lease, conveyance, transfer or other disposition
shall be made (collectively, the Successor), expressly assumes by supplemental indenture
the due and punctual payment of the principal of, premium (if any) and interest on and any
Additional Amounts with respect to all the Securities and the performance of the Companys
covenants and obligations under this Indenture and the Securities, or, in the case of such
Subsidiary Guarantor, the performance of the Guarantee and such Subsidiary Guarantors
covenants and obligations under this Indenture and the Securities;
(2) immediately after giving effect to such transaction or series of transactions, no
Default or Event of Default shall have occurred and be continuing or would result therefrom;
and
26
(3) the Company delivers to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that the transaction and such supplemental indenture comply with this
Indenture.
SECTION 5.02
Successor Person Substituted.
Upon any consolidation or merger of the Company or a Subsidiary Guarantor, as the case may be,
or any sale, lease, conveyance, transfer or other disposition of all or substantially all of the
assets of the Company or such Subsidiary Guarantor in accordance with Section 5.01, the Successor
formed by such consolidation or into or with which the Company or the Subsidiary Guarantor is
merged or to which such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of the Company or such
Subsidiary Guarantor, as the case may be, under this Indenture and the Securities with the same
effect as if such Successor had been named as the Company or such Subsidiary Guarantor, as the case
may be, herein and the predecessor Company or Subsidiary Guarantor, in the case of a sale,
conveyance, transfer or other disposition, shall be released from all obligations under this
Indenture, the Securities and, in the case of a Subsidiary Guarantor, the Guarantee.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01
Events of Default.
Unless either inapplicable to a particular series or specifically deleted or modified in or
pursuant to the supplemental indenture or Board Resolution establishing such series of Securities
or in the form of Security for such series, an Event of Default, wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any Additional Amounts with
respect to any Security of that series when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of (A) the principal of any Security of that
series at its Maturity or (B) premium (if any) on any Security of that series when the same
becomes due and payable;
(3) the Company defaults in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series, and such default continues for a period of 30 days;
(4) the Company, or if any series of Securities outstanding is entitled to the benefits
of a Guarantee, any Subsidiary Guarantor, fails to comply with any of its other covenants or
agreements in, or provisions of, the Securities of such series or this Indenture (other than
an agreement, covenant or provision that has expressly been included in this Indenture
solely for the benefit of one or more series of Securities other
27
than that series) which shall not have been remedied within the specified period after
written notice, as specified in the last paragraph of this Section 6.01;
(5) the Company, or if that series of Securities is entitled to the benefits of a
Guarantee by any Subsidiary Guarantor, any Subsidiary Guarantor, if it is a Significant
Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) consents to the appointment of a Bankruptcy Custodian of it or for all or
substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that remains unstayed and in effect for 90 days and that:
(A) is for relief against the Company or any Subsidiary Guarantor with respect
to such series, if it is a Significant Subsidiary, as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or any Subsidiary Guarantor,
if it is a Significant Subsidiary, or a Bankruptcy Custodian for all or
substantially all of the property of the Company, or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary, or
(C) orders the liquidation of the Company or any Subsidiary Guarantor with
respect to such series, if it is a Significant Subsidiary; or
(7) any Guarantee of any Subsidiary Guarantor that is a Significant Subsidiary with
respect to such series ceases to be in full force and effect with respect to Securities of
that series (except as otherwise provided in this Indenture) or is declared null and void in
a judicial proceeding, or any such Subsidiary Guarantor denies or disaffirms its obligations
under this Indenture or such Guarantee; or
(8) any other Event of Default provided with respect to Securities of that series
occurs.
The term Bankruptcy Custodian means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of any Default or 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 or Event of Default is received by the
28
Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01, if the principal of, premium
(if any) or interest on or Additional Amounts with respect to any Security is payable in a currency
or currencies (including a composite currency) other than Dollars and such currency or currencies
are not available to the Company or a Subsidiary Guarantor for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the Company or such
Subsidiary Guarantor (a Conversion Event), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an amount equal to
the Dollar equivalent of the amount payable in such other currency, as determined by the Company or
the Subsidiary Guarantor, as the case may be, by reference to the Exchange Rate on the date of such
payment, or, if such rate is not then available, on the basis of the most recently available
Exchange Rate. Notwithstanding the foregoing provisions of this Section 6.01, any payment made
under such circumstances in Dollars where the required payment is in a currency other than Dollars
will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the Company or a Subsidiary Guarantor
shall give written notice thereof to the Trustee; and the Trustee, promptly after receipt of such
notice, shall give notice thereof in the manner provided in Section 12.02 to the Holders. Promptly
after the making of any payment in Dollars as a result of a Conversion Event, the Company or a
Subsidiary Guarantor, as the case may be, shall give notice in the manner provided in Section 12.02
to the Holders, setting forth the applicable Exchange Rate and describing the calculation of such
payments.
A Default under clause (4) or (7) of this Section 6.01 is not an Event of Default until the
Trustee notifies the Company and the Subsidiary Guarantors, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by such Default notify
the Company, the Subsidiary Guarantors and the Trustee, of the Default, and the Company or the
applicable Subsidiary Guarantor, as the case may be, fails to cure the Default within 90 days after
receipt of the notice. The notice must specify the Default, demand that it be remedied and state
that the notice is a Notice of Default.
SECTION 6.02
Acceleration.
If an Event of Default with respect to any Securities of any series at the time outstanding
(other than an Event of Default specified in clause (5) or (6) of Section 6.01) occurs and is
continuing, the Trustee by notice to the Company and the Subsidiary Guarantors, or the Holders of
at least 25% in principal amount of the then outstanding Securities of the series affected by such
Event of Default by notice to the Company, the Subsidiary Guarantors and the Trustee, may declare
the principal of (or, if any such Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) and all accrued and unpaid
interest on all then outstanding Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on the Securities shall be due
29
and payable immediately. If an Event of Default specified in clause (5) or (6) of Section
6.01 hereof occurs, such amounts shall
ipso facto
become and be immediately due and payable without
any declaration, notice or other act on the part of the Trustee or any Holder. The Holders of a
majority in principal amount of the then outstanding Securities of the series affected by such
Event of Default by written notice to the Trustee may rescind an acceleration and its consequences
(other than nonpayment of principal of or premium or interest on or any Additional Amounts with
respect to the Securities) if the rescission would not conflict with any judgment or decree and if
all existing Events of Default with respect to Securities of that series have been cured or waived,
except nonpayment of principal, premium, interest or any Additional Amounts that has become due
solely because of the acceleration.
SECTION 6.03
Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal of, or premium, if any, or interest on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or
does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder
in exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04
Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in principal amount of the then
outstanding Securities of any series by notice to the Trustee may waive an existing or past Default
or Event of Default with respect to such series and its consequences (including waivers obtained in
connection with a tender offer or exchange offer for Securities of such series or a solicitation of
consents in respect of Securities of such series,
provided
that in each case such offer or
solicitation is made to all Holders of then outstanding Securities of such series), except (1) a
continuing Default or Event of Default in the payment of the principal of, or premium, if any, or
interest on or any Additional Amounts with respect to any Security or (2) a continued Default in
respect of a provision that under Section 9.02 cannot be amended or supplemented without the
consent of each Holder affected. Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05
Control by Majority.
With respect to Securities of any series, the Holders of a majority in principal amount of the
then outstanding Securities of such series may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in clause (1), (2), (3)
or (7) of Section 6.01.
30
However, the Trustee may refuse to follow any direction that conflicts with
applicable law or this Indenture, that the Trustee determines may be unduly prejudicial to the
rights of other Holders, or that may involve the Trustee in personal liability;
provided, however
,
that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent
with such direction. Prior to taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion from Holders directing the Trustee
against all losses and expenses caused by taking or not taking such action.
SECTION 6.06
Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any series may pursue a remedy with
respect to this Indenture or the Securities of such series or any related Guarantees only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default
with respect to such series;
(2) the Holders of at least 25% in principal amount of the then outstanding Securities
of such series make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in principal amount of the
Securities of that series do not give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder.
SECTION 6.07
Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder of a Security
to receive payment of principal of and premium, if any, and interest on and any Additional Amounts
with respect to the Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective dates, is absolute
and unconditional and shall not be impaired or affected without the consent of the Holder.
SECTION 6.08
Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of Section 6.01 hereof occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as trustee of
31
an express trust against the Company or a Subsidiary Guarantor for the amount of principal,
premium (if any), interest and any Additional Amounts remaining unpaid on the Securities of the
series affected by the Event of Default, and interest on overdue principal and premium, if any,
and, to the extent lawful, interest on overdue interest, and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09
Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or documents and to
take such actions, including participating as a member, voting or otherwise, of any committee of
creditors, as may be necessary or advisable to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the Company or a
Subsidiary Guarantor or their respective creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable or deliverable on
any such claims and any Bankruptcy Custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07. To the extent that
the payment of any such compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.07 out of the estate in
any such proceeding, 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, money, securities and other
properties which the Holders of the Securities may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding.
SECTION 6.10
Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall, subject to Article X,
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities in respect of which or
for the benefit of which such money has been collected, for principal, premium (if any),
interest and any Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for principal, premium (if any),
interest and any Additional Amounts, respectively; and
Third: to the Company.
32
The Trustee, upon prior written notice to the Company, may fix record dates and payment dates
for any payment to Holders pursuant to this Article VI.
To the fullest extent allowed under applicable law, if for the purpose of obtaining a judgment
against the Company or a Subsidiary Guarantor in any court it is necessary to convert the sum due
in respect of the principal of, premium (if any) or interest on or Additional Amounts with respect
to the Securities of any series (the Required Currency) into a currency in which a judgment will
be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in The City of New York next
preceding that on which final judgment is given. None of the Company, any Subsidiary Guarantor or
the Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to
Holders of Securities under this Section 6.10 caused by a change in exchange rates between the time
the amount of a judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section 6.10 to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the Company and the
Subsidiary Guarantors on the claim or claims underlying such judgment.
SECTION 6.11
Undertaking for Costs.
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 a trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys
fees, against any party litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01
Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same degree of care and skill in
such exercise, as a prudent person would exercise or use under the circumstances in the conduct of
such persons own affairs.
(b) Except during the continuance of an Event of Default with respect to the Securities of any
series:
(1) the Trustee need perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
33
(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine such certificates and opinions to determine
whether, on their face, they appear to conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its own
negligent failure to act or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of Section 7.01(b);
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds
or incur any liability. The Trustee may refuse to perform any duty or exercise any right or power
unless it receives indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by it except as the
Trustee may agree in writing with the Company and the Subsidiary Guarantors. Money held in trust
by the Trustee need not be segregated from other funds except to the extent required by law. All
money received by the Trustee shall, until applied as herein provided, be held in trust for the
payment of the principal of, premium (if any) and interest on and Additional Amounts with respect
to the Securities.
SECTION 7.02
Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed by it to be genuine and to have
been signed or presented by the proper Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require instruction, an Officers
Certificate or an Opinion of Counsel or both to be provided. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such instruction, Officers
Certificate or Opinion of Counsel. The Trustee may consult at the Companys expense with counsel
of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
34
(c) The Trustee may act through agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith
which it believes to be authorized or within its rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction
or notice from the Company or any Subsidiary Guarantor shall be sufficient if signed by an Officer
of the Company.
SECTION 7.03
May Hold Securities.
The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company, any Subsidiary Guarantor or any of their
respective Affiliates with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights and duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04
Trustees Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Companys use of the proceeds from the Securities
or any money paid to the Company or any Subsidiary Guarantor or upon the Companys or such
Subsidiary Guarantors direction under any provision hereof, it shall not be responsible for the
use or application of any money received by any Paying Agent other than the Trustee and it shall
not be responsible for any statement or recital herein or any statement in the Securities other
than its certificate of authentication.
SECTION 7.05
Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any series occurs and is
continuing and it is known to the Trustee, the Trustee shall mail to Holders of Securities of such
series a notice of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if any) and interest on
and Additional Amounts or any sinking fund installment with respect to the Securities of such
series, the Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the interests of Holders of
Securities of such series.
SECTION 7.06
Reports by Trustee to Holders.
Within
60 days after each _____ of each year after the execution of this Indenture,
the Trustee shall mail to Holders of a series, the Subsidiary Guarantors and the Company a brief
report dated as of such reporting date that complies with TIA § 313(a);
provided, however
, that if
no event described in TIA § 313(a) has occurred within the twelve months preceding the reporting
date with respect to a series, no report need be transmitted to
35
Holders of such series. The Trustee also shall comply with TIA § 313(b). The Trustee shall
also transmit by mail all reports if and as required by TIA §§ 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of a series of Securities shall be
filed by the Company or a Subsidiary Guarantor with the SEC and each securities exchange, if any,
on which the Securities of such series are listed. The Company shall notify the Trustee if and
when any series of Securities is listed on any securities exchange.
SECTION 7.07
Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of this Indenture and services
hereunder such compensation as the Company and the Trustee shall from time to time agree in
writing. The Trustees compensation shall not be limited by any law on compensation of a trustee
of an express trust. The Company agrees to reimburse the Trustee upon request for all reasonable
disbursements, advances and expenses incurred by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustees agents and counsel.
The Company hereby indemnifies the Trustee and any predecessor Trustee against any and all
loss, liability, damage, claim or expense, including taxes (other than taxes based upon, measured
by or determined by the income of the Trustee), incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company and the Subsidiary Guarantors
promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
The Company shall not be obligated to reimburse any expense or indemnify against any loss or
liability incurred by the Trustee through the Trustees negligence or bad faith.
To secure the payment obligations of the Company in this Section 7.07, the Trustee shall have
a lien prior to the Securities on all money or property held or collected by the Trustee, except
that held in trust to pay principal of, premium (if any) and interest on and any Additional Amounts
with respect to Securities of any series. Such lien and the Companys obligations under this
Section 7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.01(5) or (6) occurs, the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08
Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustees acceptance of appointment as provided in this Section
7.08.
The Trustee may resign and be discharged at any time with respect to the Securities of one or
more series by so notifying the Company and the Subsidiary Guarantors.
36
The Holders of a majority in principal amount of the then outstanding Securities of any series
may remove the Trustee with respect to the Securities of such series by so notifying the Trustee,
the Company and the Subsidiary Guarantors. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any
reason, with respect to the Securities of one or more series, the Company shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series). Within one year after the successor Trustee with respect
to the Securities of any series takes office, the Holders of a majority in principal amount of the
Securities of such series then outstanding may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series does not take office
within 30 days after the retiring or removed Trustee resigns or is removed, the retiring or removed
Trustee, the Company, any Subsidiary Guarantor or the Holders of at least 10% in principal amount
of the then outstanding Securities of such series may petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series fails to comply with Section 7.10,
any Holder of Securities of such series may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect to the Securities of
such series.
In case of the appointment of a successor Trustee with respect to all Securities, each such
successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee, to
the Company and to the Subsidiary Guarantors. Thereupon the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect to the Securities of one or
more (but not all) series, the Company, the Subsidiary Guarantors, the retiring Trustee and each
successor Trustee with respect to the Securities of one or more (but not all) series shall
37
execute and deliver an indenture supplemental hereto in which each successor Trustee shall
accept such appointment and that (1) shall confer to each successor Trustee all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers and duties of the retiring
Trustee with respect to the Securities of that or those series as to which the retiring Trustee is
not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust, and each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee shall have all the rights, powers
and duties of the retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates. On request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all property held by such
retiring Trustee as Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.
SECTION 7.09
Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee;
provided, however
, that in the
case of a transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustees liabilities
hereunder.
In case any Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated; and in case at that time any
of the Securities shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name of the successor to
the Trustee; and in all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10
Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a corporation or banking or
trust company or association organized and doing business under the laws of the United States, any
State thereof or the District of Columbia and authorized under such laws to
38
exercise corporate trust power, shall be subject to supervision or examination by Federal or
State (or the District of Columbia) authority and shall have, or be a subsidiary of a bank or bank
holding company having, a combined capital and surplus of at least $50 million as set forth in its
most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(1),
310(a)(2) and 310(a)(5). The Trustee is subject to and shall comply with the provisions of TIA
§ 310(b) during the period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA § 310(b).
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SECTION 7.11
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Preferential Collection of Claims Against the Company or a Subsidiary Guarantor.
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The Trustee is subject to and shall comply with the provisions of TIA § 311(a), excluding any
creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
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SECTION 8.01
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Termination of the Companys and the Subsidiary Guarantors Obligations.
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(a) This Indenture shall cease to be of further effect with respect to the Securities of a
series (except that the Companys obligations under Section 7.07, the Trustees and Paying Agents
obligations under Section 8.03 and the rights, powers, protections and privileges accorded the
Trustee under Article VII shall survive), and the Trustee, on demand of the Company, shall execute
proper instruments acknowledging the satisfaction and discharge of this Indenture with respect to
the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not theretofore delivered to the
Trustee for cancellation:
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(i)
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have become due and payable, or
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(ii)
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will become due and payable at
their Stated Maturity within one year, or
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(iii)
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are to be called for redemption
within one year under arrangements satisfactory to the Trustee
for the giving of
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39
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notice of redemption by the Trustee in the name, and at the
expense, of the Company,
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and, in the case of clause (i), (ii) or (iii) above, the Company or a Subsidiary
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as
funds (immediately available to the Holders in the case of clause (i)) in trust for
such purpose (x) cash in an amount, or (y) Government Obligations, maturing as to
principal and interest at such times and in such amounts as will ensure the
availability of cash in an amount or (z) a combination thereof, which will be
sufficient, in the opinion (in the case of clauses (y) and (z)) of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the entire
indebtedness on the Securities of such series for principal and interest to the date
of such deposit (in the case of Securities which have become due and payable) or for
principal, premium, if any, and interest to the Stated Maturity or Redemption Date,
as the case may be; or
(C) the Company and the Subsidiary Guarantors have properly fulfilled such
other means of satisfaction and discharge as is specified, as contemplated by
Section 2.01, to be applicable to the Securities of such series;
(2) the Company or a Subsidiary Guarantor has paid or caused to be paid all other sums
payable by them hereunder with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being applicable to Securities of a series
as contemplated by Section 2.01, the Company may, at its option, terminate certain of its and the
Subsidiary Guarantors respective obligations under this Indenture (covenant defeasance) with
respect to the Securities of a series if:
(1) the Company or a Subsidiary Guarantor has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for and dedicated solely to the benefit
of the Holders of Securities of such series, (i) money in the currency in which payment of
the Securities of such series is to be made in an amount, or (ii) Government Obligations
with respect to such series, maturing as to principal and interest at such times and in such
amounts as will ensure the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a nationally
recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and premium (if any) and interest
on all Securities of such series on each date that such principal, premium (if any) or
interest is due and payable and (at the Stated Maturity thereof or
40
upon redemption as provided in Section 8.01(e)) to pay all other sums payable by it
hereunder;
provided
that the Trustee shall have been irrevocably instructed to apply such
money and/or the proceeds of such Government Obligations to the payment of said principal,
premium (if any) and interest with respect to the Securities of such series as the same
shall become due;
(2) the Company has delivered to the Trustee an Officers Certificate stating that all
conditions precedent to satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion of Counsel from a
nationally recognized counsel acceptable to the Trustee or a tax ruling to the effect that
the Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as
a result of the Companys exercise of its option under this Section 8.01(b) and will be
subject to U.S. 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 option had not been exercised;
(5) the Company and the Subsidiary Guarantors have complied with any additional
conditions specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to have a conflicting
interest as defined in TIA § 310(b).
In such event, this Indenture shall cease to be of further effect (except as set forth in this
paragraph), and the Trustee, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the Companys and the
Subsidiary Guarantors respective obligations in Sections 2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02,
7.07, 7.08 and 8.04, the Trustees and Paying Agents obligations in Section 8.03 and the rights,
powers, protections and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the Companys obligations in
Section 7.07 and the Trustees and Paying Agents obligations in Section 8.03 shall survive with
respect to Securities of such series.
After such irrevocable deposit made pursuant to this Section 8.01(b) and satisfaction of the
other conditions set forth herein, the Trustee upon request shall acknowledge in writing the
discharge of the Companys and the Subsidiary Guarantors obligations under this Indenture with
respect to the Securities of such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay principal of or premium (if any) or
interest on the Securities, the Government Obligations shall be payable as to
41
principal or interest on or before such payment date in such amounts as will provide the
necessary money. Government Obligations shall not be callable at the issuers option.
(c) If the Company and the Subsidiary Guarantors have previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified pursuant to
Section 2.01 that are expressly applicable only to covenant defeasance) with respect to Securities
of a series, then, unless this Section 8.01(c) is specified as not being applicable to Securities
of such series as contemplated by Section 2.01, the Company may elect that its and the Subsidiary
Guarantors respective obligations to make payments with respect to Securities of such series be
discharged (legal defeasance), if:
(1) no Default or Event of Default under clauses (5) and (6) of Section 6.01 hereof
shall have occurred at any time during the period ending on the 91st day after the date of
deposit contemplated by Section 8.01(b) (it being understood that this condition shall not
be deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of such series as
contemplated by Section 2.01, the Company has delivered to the Trustee an Opinion of Counsel
from a nationally recognized counsel acceptable to the Trustee to the effect referred to in
Section 8.01(b)(4) with respect to such legal defeasance, which opinion is based on (i) a
private ruling of the Internal Revenue Service addressed to the Company, (ii) a published
ruling of the Internal Revenue Service pertaining to a comparable form of transaction or
(iii) a change in the applicable federal income tax law (including regulations) after the
date of this Indenture;
(3) the Company and the Subsidiary Guarantors have complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal defeasance of Securities of
such series pursuant to this Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request requesting such legal
defeasance of the Securities of such series and an Officers Certificate stating that all
conditions precedent with respect to such legal defeasance of the Securities of such series
have been complied with, together with an Opinion of Counsel to the same effect.
In such event, the Company and the Subsidiary Guarantors will be discharged from its
obligations under this Indenture and the Securities of such series to pay principal of, premium (if
any) and interest on and any Additional Amounts with respect to Securities of such series, the
Companys and the Subsidiary Guarantors respective obligations under Sections 4.01, 4.02 and 10.1
shall terminate with respect to such Securities, and the entire indebtedness of the Company
evidenced by such Securities and of the Subsidiary Guarantors evidenced by the related Guarantee
shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of satisfaction, discharge or
defeasance of Securities of a series are specified to be applicable to such series as contemplated
by Section 2.01, each of the Company and the Subsidiary Guarantors may terminate any or all of its
obligations under this Indenture with respect to Securities of a series
42
and any or all of its obligations under the Securities of such series if it fulfills such
other means of satisfaction and discharge as may be so specified, as contemplated by Section 2.01,
to be applicable to the Securities of such series.
(e) If Securities of any series subject to subsections (a), (b), (c) or (d) of this Section
8.01 are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the Company shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company.
SECTION 8.02
Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the Company shall hold in trust money
or Government Obligations deposited with it pursuant to Section 8.01 hereof. It shall apply the
deposited money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series with respect to which the
deposit was made. Money and securities held in trust are not subject to Article X.
SECTION 8.03
Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company or any Subsidiary Guarantor
any excess money or Government Obligations (or proceeds therefrom) held by them at any time upon
the written request of the Company.
Subject to the requirements of any applicable abandoned property laws, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by them for the payment
of principal, premium (if any), interest or any Additional Amounts that remain unclaimed for two
years after the date upon which such payment shall have become due. After payment to the Company,
Holders entitled to the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability of the Trustee and
the Paying Agent with respect to such money shall cease.
SECTION 8.04
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Obligations
deposited with respect to Securities of any series in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the obligations of the Company
and the Subsidiary Guarantors under this Indenture with respect to the Securities of such series
and under the Securities of such series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is permitted
to apply all such money or Government Obligations in accordance with Section 8.01;
provided,
however,
that if the Company or any Subsidiary Guarantor has made any payment of principal of,
premium (if any) or interest on or any
43
Additional Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company or such Subsidiary Guarantor, as the case may be, shall be subrogated to
the rights of the Holders of such Securities to receive such payment from the money or Government
Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01
Without Consent of Holders.
The Company, the Subsidiary Guarantors and the Trustee may amend or supplement this Indenture
or the Securities or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in place of certificated
Securities, or to provide for the issuance of bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of or additional obligors on,
any series of Securities or the related Guarantees, if any;
(5) to comply with any requirement in order to effect or maintain the qualification of
this Indenture under the TIA;
(6) to add to the covenants of the Company or any Subsidiary Guarantor for the benefit
of the Holders of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are expressly
being included solely for the benefit of such series), or to surrender any right or power
herein conferred upon the Company or any Subsidiary Guarantor;
(7) to add any additional Events of Default with respect to all or any series of the
Securities (and, if any Event of Default is applicable to less than all series of
Securities, specifying the series to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this Indenture;
provided
that any
such change or elimination shall become effective only when there is no outstanding Security
of any series created prior to the execution of such amendment or supplemental indenture
that is adversely affected in any material respect by such change in or elimination of such
provision;
provided, further
, that any change made solely to conform the provisions of this
Indenture to the description of any Security in a prospectus
supplement pursuant to which such Securities were offered and sold will not be deemed
to adversely affect any Security of any series in any material respect;
44
(9) to establish the form or terms of Securities of any series as permitted by Section
2.01;
(10) to supplement any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the defeasance and discharge of any series of Securities
pursuant to Section 8.01;
provided, however
, that any such action shall not adversely affect
the interest of the Holders of Securities of such series or any other series of Securities
in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board Resolution, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06,
join with the Company and the Subsidiary Guarantors in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further appropriate agreements
and stipulations that may be therein contained.
SECTION 9.02
With Consent of Holders.
Except as provided below in this Section 9.02, the Company, the Subsidiary Guarantors and the
Trustee may amend or supplement this Indenture with the written consent (including consents
obtained in connection with a tender offer or exchange offer for Securities of any one or more
series or all series or a solicitation of consents in respect of Securities of any one or more
series or all series,
provided
that in each case such offer or solicitation is made to all Holders
of then outstanding Securities of each such series (but the terms of such offer or solicitation may
vary from series to series)) of the Holders of at least a majority in principal amount of the then
outstanding Securities of each series affected by such amendment or supplement.
Upon the request of the Company, accompanied by a Board Resolution, and upon the filing with
the Trustee of evidence of the consent of the Holders as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company and the Subsidiary Guarantors in the execution of such amendment or supplemental
indenture.
It shall not be necessary for the consent of the Holders under this Section 9.02 to approve
the particular form of any proposed amendment, supplement or waiver, but it shall be sufficient if
such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding Securities of one or
more series may waive compliance in a particular instance by the Company or any Subsidiary
Guarantor with any provision of this Indenture with respect to Securities of such series (including
waivers obtained in connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series,
45
provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities of such series (but the terms of such offer or solicitation may vary from
series to series)).
However, without the consent of each Holder affected, an amendment, supplement or waiver under
this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an amendment,
supplement or waiver;
(2) reduce the rate of or change the time for payment of interest, including default
interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory sinking fund payment with
respect to, or change the Stated Maturity of, any Security or reduce the amount of the
principal of an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of any Security or change
the time at which any Security may or shall be redeemed;
(5) change any obligation of the Company or any Subsidiary Guarantor to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency or currencies (including composite currencies) in which
any Security or any premium, interest or Additional Amounts with respect thereto are
payable;
(7) impair the right to institute suit for the enforcement of any payment of principal
of, premium (if any) or interest on or any Additional Amounts with respect to any Security
pursuant to Sections 6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of Securities necessary to
waive compliance with certain provisions of this Indenture pursuant to Section 6.04 or 6.07
or make any change in this sentence of Section 9.02;
(9) modify the provisions of this Indenture with respect to the subordination of any
Security in a manner adverse to the Holder thereof;
(10) except as provided in Section 11.04, release any Subsidiary Guarantor or modify
the related Guarantee in any manner materially adverse to the Holders; or
(11) waive a continuing Default or Event of Default in the payment of principal of,
premium (if any) or interest on or Additional Amounts with respect to the Securities.
46
An amendment under this Section 9.02 may not make any change that adversely affects the rights
under Article X of any holder of an issue of Senior Debt unless the holders of the issue pursuant
to its terms consent to the change.
A supplemental indenture that changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required or sought pursuant to any
provision of this Indenture (and the obligation of the Company or any Subsidiary Guarantor to
obtain any such consent otherwise required from such Holder) may be subject to the requirement that
such Holder shall have been the Holder of record of any Securities with respect to which such
consent is required or sought as of a date identified by the Company or such Subsidiary Guarantor
in a notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section 9.02 becomes effective, the
Company shall mail to the Holders of each Security affected thereby a notice briefly describing the
amendment, supplement or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such amendment,
supplement or waiver.
SECTION 9.03
Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities shall comply in form and
substance with the TIA as then in effect.
SECTION 9.04
Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holders Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his or her Security or portion of a Security if the Trustee receives written notice of
revocation before a date and time therefor identified by the Company or any Subsidiary Guarantor in
a notice furnished to such Holder in accordance with the terms of this Indenture or, if no such
date and time shall be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its terms and thereafter
binds every Holder.
The Company or any Subsidiary Guarantor may, but shall not be obligated to, fix a record date
(which need not comply with TIA § 316(c)) for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver or to take any other action under this Indenture.
If a record date is fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment,
47
supplement or waiver or to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No consent shall be valid or effective for more
than 90 days after such record date unless consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless
it is of the type described in any of clauses (1) through (9) of Section 9.02 hereof. In such
case, the amendment, supplement or waiver shall bind each Holder who has consented to it and every
subsequent Holder that evidences the same debt as the consenting Holders Security.
SECTION 9.05
Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an outstanding Security, the Company may
require the Holder of the Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security at the request of the Company regarding the changed terms and
return it to the Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the execution of any amendment or
supplement may, and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such amendment or supplement.
SECTION 9.06
Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant to this Article if the
amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of
the Trustee. If it does, the Trustee may, but need not, sign it. In signing or refusing to sign
such amendment or supplement, the Trustee shall be entitled to receive, and, shall be fully
protected in relying upon in good faith, an Officers Certificate and an Opinion of Counsel
provided at the expense of the Company or a Subsidiary Guarantor as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is not inconsistent
herewith, and that it will be valid and binding upon the Company in accordance with its terms.
ARTICLE X
SUBORDINATION OF SECURITIES AND GUARANTEES
SECTION 10.01
Securities and Guarantees Subordinated to Senior Debt.
The Company, the Subsidiary Guarantors and each Holder of a Security of a series, by his
acceptance thereof, agree that (a) the payment of the principal of, premium (if any) and interest
on and any Additional Amounts with respect to each and all the Securities of such series and any
related Guarantee and (b) any other payment in respect of the Securities and any related Guarantee
of such series, including on account of the acquisition or redemption of
48
Securities of such series by the Company or the Subsidiary Guarantor, as the case may be, is
subordinated, to the extent and in the manner provided in this Article X, to the prior payment in
full of all Senior Debt of the Company, whether outstanding at the date of this Indenture or
thereafter created, incurred, assumed or guaranteed, and that these subordination provisions are
for the benefit of the holders of Senior Debt.
This Article X shall constitute a continuing offer to all Persons who, in reliance upon such
provisions, become holders of, or continue to hold, Senior Debt, and such provisions are made for
the benefit of the holders of Senior Debt, and such holders are made obligees hereunder and any one
or more of them may enforce such provisions.
SECTION 10.02
No Payment on Securities in Certain Circumstances.
(a) Unless otherwise provided with respect to the Securities of a series as contemplated by
Section 2.01, no payment shall be made by or on behalf of the Company or the Subsidiary Guarantor,
as the case may be, on account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities and any related Guarantees of any series or to
acquire any Securities of such series (including any repurchases of Securities of such series
pursuant to the provisions thereof at the option of the Holder thereof) for cash or property, or on
account of any redemption provisions of Securities of such series, in the event of default in
payment of any principal of, premium (if any) or interest on any Senior Debt of the Company when
the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by
acceleration of maturity or otherwise (a Payment Default), unless and until such Payment Default
has been cured or waived or otherwise has ceased to exist or such Senior Debt shall have been
discharged or paid in full.
(b) In furtherance of the provisions of Section 10.01, in the event that, notwithstanding the
foregoing provisions of this Section 10.02, any payment or distribution of assets of the Company or
the Subsidiary Guarantors, as the case may be, shall be received by the Trustee, the Paying Agent
or the Holders of Securities of any series and any related Guarantees at a time when such payment
or distribution was prohibited by the provisions of this Section 10.02, then, unless such payment
or distribution is no longer prohibited by this Section 10.02, such payment or distribution
(subject to the provisions of Section 10.07) shall be received and held in trust by the Trustee,
the Paying Agent or such Holder for the benefit of the holders of Senior Debt of the Company, and
shall be paid or delivered by the Trustee, the Paying Agent or such Holders, as the case may be, to
the holders of Senior Debt of the Company remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Debt of the Company may have been issued, ratably,
according to the aggregate amounts remaining unpaid on account of such Senior Debt of the Company
held or represented by each, for application to the payment of all Senior Debt in full after giving
effect to all concurrent payments and distributions to or for the holders of such Senior Debt.
49
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SECTION 10.03
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Securities and Guarantees Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization.
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Upon any distribution of assets of the Company or the Subsidiary Guarantors, as the case may
be, or upon any dissolution, winding up, total or partial liquidation or reorganization of the
Company or the Subsidiary Guarantors, as the case may be, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or similar proceeding or upon assignment for the benefit of
creditors:
(1) the holders of all Senior Debt of the Company shall first be entitled to receive
payments in full before the Holders of Securities of any series and any related Guarantees
are entitled to receive any payment on account of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to Securities of such series and any
related Guarantees;
(2) any payment or distribution of assets of the Company or the Subsidiary Guarantors,
as the case may be, of any kind or character, whether in cash, property or securities, to
which the Holders of Securities of any series and any related Guarantees, or the Trustee on
behalf of such Holders would be entitled, except for the provisions of this Article X, shall
be paid by the liquidating trustee or agent or other Person making such a payment or
distribution directly to the holders of such Senior Debt or their representative, ratably
according to the respective amounts of Senior Debt held or represented by each, to the
extent necessary to make payment in full of all such Senior Debt remaining unpaid after
giving effect to all concurrent payments and distributions to the holders of such Senior
Debt; and
(3) in the event that, notwithstanding the foregoing, any payment or distribution of
assets of the Company or the Subsidiary Guarantors, as the case may be, of any kind or
character, whether in cash, property or securities, shall be received by the Trustee or the
Holders of Securities of any series and any related Guarantees or any Paying Agent (or, if
the Company, the Subsidiary Guarantor or any other Subsidiary is acting as the Paying Agent,
money for any such payment or distribution shall be segregated or held in trust) on account
of the principal of, premium (if any) or interest on or any Additional Amounts with respect
to the Securities of such series and any related Guarantees before all Senior Debt of the
Company is paid in full, such payment or distribution (subject to the provisions of Section
10.07) shall be received and held in trust by the Trustee or such Holder or Paying Agent for
the benefit of the holders of such Senior Debt, or their respective representatives, ratably
according to the respective amounts of such Senior Debt held or represented by each, to the
extent necessary to make payment as provided herein of all such Senior Debt remaining unpaid
after giving effect to all concurrent payments and distributions and all provisions therefor
to or for the holders of such Senior Debt, but only to the extent that as to any holder of
such Senior Debt, as promptly as practical following notice from the Trustee to the holders
of such Senior Debt that such prohibited payment has been received by the Trustee, Holder(s)
or Paying Agent (or has been segregated as provided above), such holder (or a representative
therefor) notifies the Trustee of the amounts then due and owing on such
50
Senior Debt, if any, held by such holder and only the amounts specified in such notices
to the Trustee shall be paid to the holders of such Senior Debt.
SECTION 10.04
Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt of the Company as provided herein, the
Holders of the Securities of any series and any related Guarantees shall be subrogated (to the
extent of the payments or distributions made to the holders of such Senior Debt pursuant to the
provisions of this Article X) to the rights of the holders of such Senior Debt to receive payments
or distributions of assets of the Company or the Subsidiary Guarantors, as the case may be,
applicable to the Senior Debt until all amounts owing on the Securities of such series and any
related Guarantees shall be paid in full. For the purpose of such subrogation, no such payments or
distributions to the holders of such Senior Debt by the Company or the Subsidiary Guarantors, as
the case may be, or by or on behalf of the Holders of the Securities of such series and any related
Guarantees by virtue of this Article X, which otherwise would have been made to such Holders shall,
as between the Company or the Subsidiary Guarantors, as the case may be, and such Holders, be
deemed to be payment by the Company or the Subsidiary Guarantors, as the case may be, or on account
of such Senior Debt, it being understood that the provisions of this Article X are and are intended
solely for the purpose of defining the relative rights of the Holders of the Securities of a series
and any related Guarantees, on the one hand, and the holders of such Senior Debt, on the other
hand.
If any payment or distribution to which the Holders of the Securities and any related
Guarantees would otherwise have been entitled but for the provisions of this Article X shall have
been applied, pursuant to the provisions of this Article X, to the payment of amounts payable under
Senior Debt, then such Holders shall be entitled to receive from the holders of such Senior Debt
any payments or distributions received by such holders of Senior Debt in excess of the amount
sufficient to pay all amounts payable under or in respect of such Senior Debt in full.
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SECTION 10.05
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Obligations of the Company and the Subsidiary Guarantors Unconditional.
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Nothing contained in this Article X or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as between the Company or the Subsidiary Guarantors, as the case may
be, and the Holders of the Securities of any series and any related Guarantees, the obligation of
the Company or the Subsidiary Guarantors, as the case may be, which is absolute and unconditional,
to pay to such Holders the principal of such series, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of such series and any related Guarantees of such
series as and when the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of such Holders and creditors of the Company or the
Subsidiary Guarantors, as the case may be, other than the holders of the Senior Debt, nor shall
anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article X, of the holders of Senior Debt in respect of cash, property or securities of the
Company or the Subsidiary Guarantors, as the case may be, received upon the exercise of any such
remedy. Notwithstanding anything to the
51
contrary in this Article X or elsewhere in this Indenture or in the Securities, upon any
distribution of assets of the Company or the Subsidiary Guarantors, as the case may be, referred to
in this Article X, the Trustee, subject to the provisions of Sections 7.01 and 7.02, and the
Holders of the Securities and any related Guarantee shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the liquidating trustee
or agent or other Person making any distribution to the Trustee or to such Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior
Debt and other Debt of the Company or any Subsidiary Guarantors, as the case may be, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article X so long as such court has been apprised of the provisions
of, or the order, decree or certificate makes reference to, the provisions of this Article X.
SECTION 10.06
Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the existence of any facts that
would prohibit the making of any payment to or by the Trustee unless and until a Responsible
Officer of the Trustee or any Paying Agent shall have received, no later than two Business Days
prior to such payment, written notice thereof from the Company or the Subsidiary Guarantor, as the
case may be, or from one or more holders of Senior Debt or from any representative thereof and,
prior to the receipt of any such written notice, the Trustee, subject to the provisions of Sections
7.01 and 7.02, shall be entitled in all respects conclusively to assume that no such fact exists.
SECTION 10.07
Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in accordance with Article VIII
shall be for the sole benefit of Holders of Securities of the series for the benefit of which such
amounts were deposited, and, to the extent allocated for the payment of Securities and any related
Guarantees of such series, shall not be subject to the subordination provisions of this Article X.
Otherwise, any deposit of assets with the Trustee or the Paying Agent (whether or not in trust) for
the payment of principal of, premium (if any) or interest on or any Additional Amounts with respect
to any Securities of such series and any related Guarantees shall be subject to the provisions of
Sections 10.01, 10.02, 10.03 and 10.04;
provided
that if prior to two Business Days preceding the
date on which by the terms of this Indenture any such assets may become distributable for any
purpose (including, without limitation, the payment of either principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Security and any related Guarantees), a
Responsible Officer of the Trustee or such Paying Agent shall not have received with respect to
such assets the written notice provided for in Section 10.06, then the Trustee or such Paying Agent
shall have full power and authority to receive such assets and to apply the same to the purpose for
which they were received, and shall not be affected by any notice to the contrary that may be
received by it on or after such date; and
provided further
that nothing contained in this Article X
shall prevent the Company or the Subsidiary Guarantors, as the case may be, from making, or the
Trustee from receiving or applying, any payment in connection with the redemption of Securities of
a series if the first publication of notice of such redemption (whether by mail or otherwise in
accordance with this
52
Indenture) has been made, and the Trustee has received such payment from the Company or the
Subsidiary Guarantors, as the case may be, prior to the occurrence of any of the contingencies
specified in Section 10.02 or 10.03.
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SECTION 10.08
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Subordination Rights Not Impaired by Acts or Omissions of the Company, the Subsidiary
Guarantors or Holders of Senior Debt.
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No right of any present or future holders of any Senior Debt to enforce subordination
provisions contained in this Article X shall at any time in any way be prejudiced or impaired by
any act or failure to act on the part of the Company or the Subsidiary Guarantors, as the case may
be, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company or the Subsidiary Guarantors, as the case may be, with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
The holders of Senior Debt may extend, renew, modify or amend the terms of the Senior Debt or any
security therefor and release, sell or exchange such security and otherwise deal freely with the
Company or the Subsidiary Guarantors, as the case may be, all without affecting the liabilities and
obligations of the parties to this Indenture or the Holders of the Securities of any series and any
related Guarantees.
SECTION 10.09
Trustee to Effectuate Subordination of Securities.
Each Holder of a Security of any series and any related Guarantees by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provisions contained in this Article X and to
protect the rights of the Holders of the Securities and any related Guarantee of such series
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for such purpose,
including, in the event of any dissolution, winding up, liquidation or reorganization of the
Company or the Subsidiary Guarantors, as the case may be (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors of the Company or the
Subsidiary Guarantors, as the case may be), the filing of a claim for the unpaid balance of his
Securities and any related Guarantees in the form required in said proceedings and cause said claim
to be approved. If the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file such claim or claims,
then the holders of the Senior Debt or their representative is hereby authorized to have the right
to file and is hereby authorized to file an appropriate claim for and on behalf of the Holders of
Securities of such series and any related Guarantees. Nothing contained herein shall be deemed to
authorize the Trustee or the holders of Senior Debt or their representative to authorize or consent
to or accept or adopt on behalf of any Holder of Securities of any series and any related
Guarantees any plan of reorganization, arrangement, adjustment or composition affecting the
Securities of such series and any related Guarantees or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Debt or their representative to vote in respect of
the claim of any Holder of the Securities of such series and any related Guarantees in any such
proceeding.
53
SECTION 10.10
Right of Trustee to Hold Senior Debt.
The Trustee in its individual capacity shall be entitled to all of the rights set forth in
this Article X in respect of any Senior Debt at any time held by it to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall be construed to deprive the Trustee of
any of its rights as such holder.
SECTION 10.11
Article X Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium (if any) or interest on
the Securities of any series and any related Guarantees by reason of any provision of this Article
X shall not be construed as preventing the occurrence of a Default or an Event of Default under
Section 6.01 with respect to Securities of such series and any related Guarantees or in any way
prevent the Holders of the Securities of such series and any related Guarantees from exercising any
right hereunder other than the right to receive payment on the Securities of such series and any
related Guarantees.
SECTION 10.12
No Fiduciary Duty of Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and
shall not be liable to any such holders (other than for its willful misconduct or negligence) if it
shall in good faith mistakenly pay over or distribute to the Holders of the Securities of any
series and any related Guarantees or the Company or the Subsidiary Guarantors, as the case may be,
or any other Person, cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article X or otherwise. Nothing in this Section 10.12 shall affect the
obligation of any other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Debt or their representative.
SECTION 10.13
Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term Trustee as used in this Article X shall in such
case (unless the context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article X in addition to or in place of the Trustee;
provided
,
however
, that this
Section 10.13 shall not apply to the Company, any Subsidiary Guarantor or any other Subsidiary if
the Company, such Subsidiary Guarantor or such other Subsidiary acts as Paying Agent.
ARTICLE XI
GUARANTEE
SECTION 11.01
Guarantee
.
(a) Notwithstanding any provision of this Article XI to the contrary, the provisions of this
Article XI relating to the Subsidiary Guarantors shall be applicable only to, and
54
inure solely to
the benefit of, the Securities of any series designated, pursuant to Section 2.01, as entitled to
the benefits of the related Guarantee of each of the Subsidiary Guarantors.
(b) For value received, each of the Subsidiary Guarantors hereby fully, unconditionally and
absolutely guarantees (each, a Guarantee) to the Holders and to the Trustee the due and punctual
payment of the principal of, and premium, if any, and interest on the Securities and all other
amounts due and payable under this Indenture and the Securities by the Company, when and as such
principal, premium, if any, and interest shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise, according to the
terms of the Securities and this Indenture, subject to the limitations set forth in Section 11.03
and the subordination provisions contained in Article X.
(c) Failing payment when due of any amount guaranteed pursuant to the related Guarantee, for
whatever reason, each of the Subsidiary Guarantors will be jointly and severally obligated to pay
the same immediately, subject to the subordination provisions contained in Article X. Each of the
Guarantees hereunder is intended to be a general, unsecured, subordinated obligation of the related
Subsidiary Guarantor and will rank pari passu in right of payment with all Debt of such Subsidiary
Guarantor that is not, by its terms, expressly subordinated in right of payment to such Guarantee.
Each of the Subsidiary Guarantors hereby agrees that its obligations hereunder shall be full,
unconditional and absolute, irrespective of the validity, regularity or enforceability of the
Securities, its Guarantee, the Guarantee of any other Subsidiary Guarantor or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder of the Securities
with respect to any provisions hereof or thereof, the recovery of any judgment against the Company
or any Subsidiary Guarantor, or any action to enforce the same or any other circumstances which
might otherwise constitute a legal or equitable discharge or defense of the Subsidiary Guarantors.
Each of the Subsidiary Guarantors hereby agrees that in the event of a default in payment of the
principal of, or premium, if any, or interest on the Securities of such series, whether at the
Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal
proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 6.06,
by the Holders, on the terms and conditions set forth in this Indenture, directly against such
Subsidiary Guarantor to enforce such Guarantee without first proceeding against the Company or any
other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article XI shall be as
aforesaid full, unconditional and absolute and shall not be impaired, modified, released or limited
by any occurrence or condition whatsoever, including, without limitation, (i) any compromise,
settlement, release, waiver, renewal, extension, indulgence or modification of, or any change in,
any of the obligations and liabilities of the Company or any of the Subsidiary Guarantors contained
in the Securities or this Indenture, (ii) any impairment, modification, release or limitation of
the liability of the Company, any of the Subsidiary Guarantors or any of their estates in
bankruptcy, or any remedy for the enforcement thereof, resulting from the operation of any present
or future provision of any applicable Bankruptcy Law, as amended, or other statute or from the
decision of any court, (iii) the assertion or exercise by the Company, any of the Subsidiary
Guarantors or the Trustee of any rights or remedies under the Securities or this Indenture or their
delay in or failure to assert or exercise any such rights or remedies, (iv) the
assignment or the purported assignment of any property as security for the Securities,
including all or any part of the rights of the Company or any of the Subsidiary Guarantors under
this
55
Indenture, (v) the extension of the time for payment by the Company or any of the Subsidiary
Guarantors of any payments or other sums or any part thereof owing or payable under any of the
terms and provisions of the Securities or this Indenture or of the time for performance by the
Company or any of the Subsidiary Guarantors of any other obligations under or arising out of any
such terms and provisions or the extension or the renewal of any thereof, (vi) the modification or
amendment (whether material or otherwise) of any duty, agreement or obligation of the Company or
any of the Subsidiary Guarantors set forth in this Indenture, (vii) the voluntary or involuntary
liquidation, dissolution, sale or other disposition of all or substantially all of the assets,
marshaling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment of, or other similar
proceeding affecting, the Company or any of the Subsidiary Guarantors or any of their respective
assets, or the disaffirmance of the Securities, the Guarantees or this Indenture in any such
proceeding, (viii) the release or discharge of the Company or any of the Subsidiary Guarantors from
the performance or observance of any agreement, covenant, term or condition contained in any of
such instruments by operation of law, (ix) the unenforceability of the Securities of such series,
the related Guarantees or this Indenture or (x) any other circumstances (other than payment in full
or discharge of all amounts guaranteed pursuant to the related Guarantees) which might otherwise
constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (i) waives diligence, presentment, demand of
payment, filing of claims with a court in the event of the merger, insolvency or bankruptcy of the
Company or any of the Subsidiary Guarantors, and all demands whatsoever, (ii) acknowledges that any
agreement, instrument or document evidencing its Guarantee may be transferred and that the benefit
of its obligations hereunder shall extend to each holder of any agreement, instrument or document
evidencing its Guarantee without notice to it and (iii) covenants that its Guarantee will not be
discharged except by complete performance of such Guarantee. Each of the Subsidiary Guarantors
further agrees that if at any time all or any part of any payment theretofore applied by any Person
to its Guarantee is, or must be, rescinded or returned for any reason whatsoever, including,
without limitation, the insolvency, bankruptcy or reorganization of the Company or any of the
Subsidiary Guarantors, such Guarantee shall, to the extent that such payment is or must be
rescinded or returned, be deemed to have continued in existence notwithstanding such application,
and such Guarantee shall continue to be effective or be reinstated, as the case may be, as though
such application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of the Holders and the
Trustee against the Company in respect of any amounts paid by such Subsidiary Guarantor pursuant to
the provisions of this Indenture;
provided, however
, that such Subsidiary Guarantor shall not be
entitled to enforce or to receive any payments arising out of, or based upon, such right of
subrogation until all of the Securities of such series and the related Guarantees shall have been
paid in full or discharged.
SECTION 11.02
Execution and Delivery of Guarantees
.
To further evidence its Guarantee set forth in Section 11.01, each of the Subsidiary
Guarantors hereby agrees that a notation relating to such Guarantee, substantially in
56
the form
attached hereto as Annex A, shall be endorsed on each Security of the series entitled to the
benefits of such Guarantee authenticated and delivered by the Trustee, which notation of Guarantee
shall be executed by either manual or facsimile signature of an Officer of such Subsidiary
Guarantor. Each of the Subsidiary Guarantors hereby agrees that its Guarantee set forth in Section
11.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security
a notation relating to such Guarantee. If any Officer of such Subsidiary Guarantor whose signature
is on this Indenture or a notation of Guarantee no longer holds that office at the time the Trustee
authenticates such Security or at any time thereafter, the Guarantee of such Security shall be
valid nevertheless. The delivery of any Security of a series entitled to the benefits of a
Guarantee under this Article XI by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of each Subsidiary
Guarantor.
SECTION 11.03
Limitation on Liability of the Subsidiary Guarantors
.
Each Subsidiary Guarantor and by its acceptance hereof each Holder of a Security of a series
entitled to the benefits of a Guarantee under this Article XI hereby confirms that it is the
intention of all such parties that the guarantee by such Subsidiary Guarantor pursuant to its
Guarantee not constitute a fraudulent transfer or conveyance for purposes of any federal or state
law. To effectuate the foregoing intention, the Holders of a Security entitled to the benefits of
such Guarantee and the Subsidiary Guarantors hereby irrevocably agree that the obligations of each
Subsidiary Guarantor under its Guarantee shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor and 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 Guarantee, result in the obligations
of such Subsidiary Guarantor under its Guarantee not constituting a fraudulent conveyance or
fraudulent transfer under federal or state law.
SECTION 11.04
Release of Subsidiary Guarantors from Guarantee
.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee of any Subsidiary
Guarantor may be released upon the terms and subject to the conditions set forth in this Section
11.04. Provided that no Default shall have occurred and shall be continuing under this Indenture,
any Guarantee incurred by a Subsidiary Guarantor pursuant to this Article XI shall be
unconditionally released and discharged (i) automatically upon (A) any sale, exchange or transfer,
whether by way of merger or otherwise, to any Person that is not an Affiliate of the Company, of
all of the Companys direct or indirect equity interests in such Subsidiary Guarantor (
provided
such sale, exchange or transfer is not prohibited by this Indenture) or
(B) the merger of such Subsidiary Guarantor into the Company or any other Subsidiary Guarantor
or the liquidation and dissolution of such Subsidiary Guarantor (in each case to the extent not
prohibited by this Indenture) or (ii) following delivery of a written notice of such release or
discharge by the Company to the Trustee, upon the release or discharge of all guarantees by such
Subsidiary Guarantor of any Debt of the Company other than obligations arising under this Indenture
and any Securities issued hereunder, except a discharge or release by or as a result of payment
under such guarantees.
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(b) The Trustee shall deliver an appropriate instrument evidencing any release of a Subsidiary
Guarantor from its Guarantee upon receipt of a written request of the Company accompanied by an
Officers Certificate and an Opinion of Counsel that the Subsidiary Guarantor is entitled to such
release in accordance with the provisions of this Indenture. If the Subsidiary Guarantor is not so
released it shall remain liable for the full amount of principal of (and premium, if any, on) and
interest on the Securities entitled to the benefits of such Guarantee as provided in this
Indenture, subject to the limitations of Section 11.03.
SECTION 11.05
Contribution
. In order to provide for just and equitable contribution among the Subsidiary
Guarantors, the Subsidiary Guarantors hereby agree, inter se, that in the event any payment or
distribution is made by any Subsidiary Guarantor (a Funding Guarantor) under its Guarantee, such
Funding Guarantor shall be entitled to a contribution from each other Subsidiary Guarantor (as
applicable) in a pro rata amount based on the net assets of each Subsidiary Guarantor (including
the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in
discharging the Companys obligations with respect to the Securities of a series entitled to the
benefits of a Guarantee under this Article XI or any other Subsidiary Guarantors obligations with
respect to its Guarantee of such series of Securities.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by
operation of TIA § 318(c), the imposed duties shall control.
SECTION 12.02
Notices.
Any notice or communication by the Company, any Subsidiary Guarantor or the Trustee to the
other is duly given if in writing and delivered in person or mailed by first-class mail (registered
or certified, return receipt requested), telex, facsimile or overnight air courier guaranteeing
next day delivery, to the others address:
If to the Company or any Subsidiary Guarantor:
Carrizo Oil & Gas, Inc.
1000 Louisiana, Suite 1500
Houston, Texas 77002
Attn: S.P. Johnson IV
Telephone: (713) 328-1000
Facsimile: (713) 358-6440
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If to the Trustee:
Wells Fargo Bank, National Association
Corporate Trust Services
1445 Ross Avenue 2nd Floor
Dallas, Texas 75202-2812
Attn: Patrick Giordano
Telephone: (214) 740-1573
Facsimile: (214) 777-4086
The Company, any Subsidiary Guarantor or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class mail, postage prepaid,
to the Holders address shown on the register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.
If the Company or a Subsidiary Guarantor mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to the Trustee, the
Company or a Subsidiary Guarantor by Holders, shall be in writing, except as otherwise set forth
herein.
In case by reason of the suspension of regular mail service, or by reason of any other cause,
it shall be impossible to mail any notice required by this Indenture, then such method of
notification as shall be made with the approval of the Trustee shall constitute a sufficient
mailing of such notice.
SECTION 12.03
Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA § 312(b) with other Holders with respect to their
rights under this Indenture or the Securities. The Company, the Subsidiary Guarantors, the
Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
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SECTION 12.04
Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or a Subsidiary Guarantor to the Trustee to
take any action under this Indenture, the Company or such Subsidiary Guarantor shall, if requested
by the Trustee, furnish to the Trustee at the expense of the Company or such Subsidiary Guarantor,
as the case may be:
(1) an Officers Certificate (which shall include the statements set forth in
Section 12.05) stating that, in the opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements set forth in
Section 12.05 hereof) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 12.05
Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply
with the provisions of TIA § 314(e) and shall include:
(1) a statement that the Person making such certificate or opinion has read such
covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been complied with.
SECTION 12.06
Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar
or the Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 12.07
Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
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SECTION 12.08
No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of the Company, a
Subsidiary Guarantor or the Trustee, as such, shall not have any liability for any obligations of
the Company under the Securities, for the obligations of any Subsidiary Guarantor under any
Guarantee, or for any obligations of the Company, any Subsidiary Guarantor or the Trustee under
this Indenture or for any claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such liability. The waiver
and release shall be part of the consideration for the issue of Securities.
SECTION 12.09
Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.10
No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company, any Subsidiary Guarantor or any other Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 12.11
Successors.
All agreements of the Company and each of the Subsidiary Guarantors in this Indenture and the
Securities shall bind their successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 12.12
Severability.
In case any provision in this Indenture or in the Securities or in any Guarantee shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall, to the fullest extent permitted by applicable law, not in any way be affected or
impaired thereby.
SECTION 12.13
Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
SECTION 12.14
Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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CARRIZO OIL & GAS, INC.
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By:
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Name:
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Title:
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CCBM, INC.
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By:
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Name:
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Title:
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CLLR, INC.
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By:
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Name:
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Title:
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HONDO PIPELINE, INC.
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By:
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Name:
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Title:
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WELLS FARGO BANK, NATIONAL ASSOCIATION
__________________________,
as Trustee
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ANNEX A
NOTATION OF GUARANTEE
Each of the Subsidiary Guarantors (which term includes any successor Person under the
Indenture) has fully, unconditionally and absolutely guaranteed, to the extent set forth in the
Indenture and subject to the provisions in the Indenture, the due and punctual payment of the
principal of, and premium, if any, and interest on the Securities and all other amounts due and
payable under the Indenture and the Securities by the Company.
The obligations of the Subsidiary Guarantors to the Holders of Securities and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article XI of the Indenture
and reference is hereby made to the Indenture for the precise terms of the Guarantee.
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[NAME OF SUBSIDIARY GUARANTOR]
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By:
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Name:
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Title:
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A-1