-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, bxJQUbRp5Rfto6JSiKTuVADjy2qPs0D/EsBvVLtSdWop3lX0kT6VbJtRMlwE1AXi qUNdHCsyFZndCK13miJnUQ== 0000950134-94-000845.txt : 19940801 0000950134-94-000845.hdr.sgml : 19940801 ACCESSION NUMBER: 0000950134-94-000845 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19940729 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SNYDER OIL CORP CENTRAL INDEX KEY: 0000860713 STANDARD INDUSTRIAL CLASSIFICATION: 1311 IRS NUMBER: 752306158 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-54809 FILM NUMBER: 94540899 BUSINESS ADDRESS: STREET 1: 777 MAIN ST STE 2500 CITY: FORT WORTH STATE: TX ZIP: 76102 BUSINESS PHONE: 8173384043 MAIL ADDRESS: STREET 1: 777 MAIN STREET SUITE 2500 CITY: FORT WORTH STATE: TX ZIP: 76102 S-3 1 FORM S-3 1 As filed with the Securities and Exchange Commission on July 29, 1994 Registration No. 33-_________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- SNYDER OIL CORPORATION (Exact name of Registrant as specified in its charter) DELAWARE 75-2306158 (State or other jurisdiction of (I.R.S. Employer corporation or organization) Identification Number)
777 MAIN STREET, SUITE 2500 FORT WORTH, TEXAS 76102 817/338-4043 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) -------------------- PETER E. LORENZEN SNYDER OIL CORPORATION 777 MAIN STREET, SUITE 2500 FORT WORTH, TEXAS 76102 817/882-5905 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------- Copies to: THOMAS J. EDELMAN SNYDER OIL CORPORATION 595 MADISON AVENUE, 27TH FLOOR NEW YORK, NEW YORK 10022 212/371-1117 -------------------- Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement, as determined by the Registrant. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ( ) If any of the securities 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: (x) CALCULATION OF REGISTRATION FEE
=================================================================================================================== Proposed maximum Proposed maximum Title of each class of Amount to be offering price aggregate Amount of securities to be registered Registered (1) per unit offering Registration price (1) fee - ------------------------------------------------------------------------------------------------------------------- Debt Securities (2) (3) $250,000,000 $86,207 Debt Warrants Preferred Stock (par value $.01 per share) Depositary Shares (4) Preferred Stock Warrants Common Stock (par value $.01 per share) Common Stock Warrants ===================================================================================================================
(Footnotes on next page) -------------------- The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to Section 8(a), may determine. ================================================================================ 2 (1) In no event will the aggregate maximum offering price of all securities issued under this Registration Statement, as may be offered from time to time, exceed $250,000,000. (2) Subject to footnote (1), there are being registered hereunder an indeterminate number of shares of Common Stock, Preferred Stock and Depositary Shares, an indeterminate principal amount of Debt Securities and an indeterminate number of Common Stock Warrants, Preferred Stock Warrants and Debt Warrants representing rights to purchase Common Stock, Preferred Stock and Debt Securities, as may be sold from time to time by the Registrant. There are also being registered hereunder an indeterminate number of shares of Common Stock, Preferred Stock and Depositary Shares and an indeterminate principal amount of Debt Securities as shall be issuable upon conversion or exchange of the Preferred Stock or Debt Securities issued hereunder. (3) The proposed maximum offering price per unit will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities issued hereunder. (4) If the Registrant elects to offer to the public fractional interests in shares of Preferred Stock registered hereunder, Depositary Receipts to be issued under a Depositary Agreement will be distributed to those persons purchasing such fractional interests, and the shares of Preferred Stock will be issued to the Depositary under the Depositary Agreement. 3 Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any State in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such State. SUBJECT TO COMPLETION, DATED JULY 29, 1994 SNYDER OIL CORPORATION DEBT SECURITIES PREFERRED STOCK, DEPOSITARY SHARES COMMON STOCK WARRANTS Snyder Oil Corporation (the "Company") may offer from time to time (i) Debt Securities ("Debt Securities"), which may be either senior debt securities ("Senior Securities") or subordinated debt securities ("Subordinated Securities"), consisting of debentures, notes or other unsecured evidences of indebtedness in one or more series; (ii) shares of Preferred Stock, par value $.01 per share ("Preferred Stock"), in one or more series, and depositary shares ("Depositary Shares") representing a fractional interest in a share of Preferred Stock; (iii) shares of Common Stock, par value $.01 per share ("Common Stock"); or (iv) Warrants ("Warrants") to purchase Debt Securities, Preferred Stock, Depositary Shares or Common Stock (Debt Securities, Preferred Stock, Depositary Shares, Common Stock and Warrants are hereafter collectively called "Securities") at an aggregate initial offering price not to exceed US$250,000,000 at prices and on terms to be determined at the time of sale. All specified terms of the offering and sale of the Securities will be set forth in one or more supplements to this Prospectus ("Prospectus Supplement"), including (i) in the case of Debt Securities, the title, aggregate principal amount, whether such Debt Securities are senior or subordinate, denominations, maturity, rate, if any, of interest (which may be fixed or variable) or method of calculation thereof, and time of payment of any interest, any terms for redemption at the option of the Company or the holder, any terms for sinking fund payments, any conversion or exchange rights, any listing on a securities exchange and the initial public offering price and any other terms in connection with the offering and sale of such Debt Securities; (ii) in the case of Preferred Stock and Depositary Shares, the designation, number of shares, stated value and liquidation preference per share, initial public offering price, dividend rate (or method of calculation), dates on which dividends will be payable and dates from which interest will accrue, voting rights, any redemption or sinking fund provisions, any conversion or exchange rights, whether the Company has elected to offer the Preferred Stock in the form of Depositary Shares, any listing of the Preferred Stock on a securities exchange, and any other terms in connection with the offering and sale of such Preferred Stock; (iii) in the case of Common Stock, the number of shares of Common Stock and the terms of the offering thereof; and (iv) in the case of Warrants, the number and terms thereof, the designation and the number of Securities issuable upon their exercise, the exercise price, any listing of the Warrants or the underlying Securities on a securities exchange and any other terms in connection with the offering, sale and exercise of the Warrants. The Senior Securities will rank equally with all other unsecured Senior Indebtedness (as defined) of the Company. The Subordinated Securities will be subordinated to all existing and future Senior Indebtedness (as defined) of the Company. The Company's Common Stock is listed on the New York Stock Exchange (Symbol "SNY"). Any Common Stock offered will be listed, subject to notice of issuance, on such exchange. The Company also has listed on the New York Stock Exchange $4.00 Convertible Exchangeable Preferred Stock (Symbol "SNY Pr"), Depositary Shares representing a one-quarter interest in the Company's $6.00 Convertible Exchangeable Preferred Stock (Symbol "SNY Pr A") and 7% Convertible Subordinated Notes due 2001 (Symbol "SNY RA"). The Company may sell Securities to or through underwriters, and also may sell Securities directly to other purchasers or through agents. The Prospectus Supplement will set forth the names of any underwriters or agents involved in the sale of the Securities in respect of which this Prospectus is being delivered, the amounts, if any, to be purchased by underwriters and the compensation, if any, of such underwriters or agents. See "Plan of Distribution" herein. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is ______________,1994 4 No person is authorized to give any information or to make any representations not contained or incorporated by reference in this Prospectus or in the Prospectus Supplement, and if given or made, such information or representations must not be relied upon as having been authorized by the Company or any underwriter, agent or dealer. This Prospectus does not constitute an offer to sell or a solicitation of an offer to buy any securities other than the Securities in respect of which this Prospectus is delivered or an offer of any securities in any jurisdiction to any person where such an offer would be unlawful. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements and other information can be inspected and copied at the public reference facilities maintained by the Commission at its principal offices located at Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at its regional offices located at Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511, and 7 World Trade Center, New York, New York 10048. Copies of such material can be obtained at prescribed rates from the Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. In addition, such reports and proxy statements can be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005. The Company has filed with the Commission a Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Securities Act"), with respect to the Securities. This Prospectus, which constitutes a part of the Registration Statement, does not contain all the information set forth in the Registration Statement, certain parts of which are omitted in accordance with the rules and regulations of the Commission. For further information with respect to the Company and the Securities offered hereby, reference is made to the Registration Statement and related exhibits. Statements contained in this Prospectus concerning the contents of any contract, agreement or other document filed as an exhibit to the Registration Statement are not necessarily complete. In each instance, reference is made to the copy of the contract, agreement or other document filed as an exhibit to the Registration Statement for a more complete description of the matter involved, and each such statement is qualified in all respects by such reference. Copies of the Registration Statement may be obtained upon payment of the prescribed fees at the offices of the Commission set forth above. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by the Company with the Commission pursuant to the Exchange Act are incorporated herein by reference: (a) Annual Report on Form 10-K for the year ended December 31, 1993, as amended and (b) Quarterly Report on Form 10-Q for the quarterly period ended March 31, 1994. All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to the termination of the offering of the Securities shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein or in the Prospectus Supplement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. The Company will furnish without charge to each person, including any beneficial owner, to whom this Prospectus is delivered, upon the written or oral request of such person, a copy of any of the documents incorporated by reference herein, except for the exhibits to such documents (unless such exhibits are specifically incorporated by reference into such documents). Requests should be directed to Snyder Oil Corporation, Attention: Investor Relations, 1625 Broadway, Suite 2200, Denver, Colorado, 303/592-8638. 2 5 THE COMPANY Snyder Oil Corporation is engaged in the development and acquisition of oil and gas properties. In addition, the Company gathers, transports, processes and markets natural gas. The Company also participates in international exploration projects and development through wholly-owned and partially-owned subsidiaries and affiliates. The Company's principal executive office is located at 777 Main Street, Suite 2500, Fort Worth, Texas 76102, and its telephone number is 817/338-4043. The Company maintains administrative offices in Denver and New York and has eight field offices in Colorado, Wyoming, Texas and New Mexico. USE OF PROCEEDS Except as otherwise described in the accompanying Prospectus Supplement, the net proceeds from any sale of Securities will be used for general corporate purposes, which may include refinancing of indebtedness, acquisitions, working capital, capital expenditures and repurchases and redemptions of securities. RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS The ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends for the Company and its subsidiaries for the periods indicated below was:
Year ended December 31, Three Months ----------------------------------- Ended March 31, 1989 1990 1991 1992 1993 1994 ---- ---- ---- ---- ---- ---------------- Ratio of earnings to fixed charges 10.6x 2.6x 2.4x 4.5x 7.6x 7.4x Ratio of earnings to combined fixed charges and preferred stock dividends 10.6x 2.6x 2.2x 2.3x 2.8x 2.4x
For the purposes of calculating the above ratios, earnings consist primarily of income before income taxes and fixed charges. Fixed charges represent interest expense and a portion of rental expense deemed representative of the interest factor. Preferred stock dividends represent an amount equal to income, before income tax, which would be required to meet the dividends on the preferred stock. 3 6 DESCRIPTION OF DEBT SECURITIES The following description of the Debt Securities sets forth certain general terms and provisions of the Debt Securities to which any Prospectus Supplement may relate ("Offered Debt Securities"). The particular terms of the Offered Debt Securities and the extent to which such general provisions may apply will be described in a Prospectus Supplement relating to such Offered Debt Securities. The Debt Securities will be general unsecured obligations of the Company and will constitute either senior debt securities or subordinated debt securities. Debt Securities that will be senior debt securities ("Senior Debt Securities") will be issued under an Indenture (the "Senior Indenture") between the Company and a trustee, the form of which is filed as an exhibit to the Registration Statement. Debt Securities that will be subordinated debt securities ("Subordinated Debt Securities") will be issued under an Indenture (the "Subordinated Indenture" and, collectively with the Senior Indenture, the "Indentures") between the Company and a trustee (collectively with the trustee under the Senior Indenture, the "Trustee"), the form of which is filed as an exhibit to the Registration Statement. The statements under this caption relating to the Debt Securities and the Indentures are summaries only and do not purport to be complete. Such summaries make use of terms defined in the Indentures. Wherever such terms are used herein or particular provisions of the Indentures are referred to, such terms or provisions, as the case may be, are incorporated by reference as part of the statements made herein, and such statements are qualified in their entirety by such reference. Certain defined terms in the Indentures are capitalized herein. The italicized references below apply to the section numbers in each of the Indentures, unless otherwise indicated. GENERAL The Indentures do not limit the aggregate principal amount of Debt Securities which can be issued thereunder and provide that Debt Securities may be issued from time to time thereunder in one or more series, each in an aggregate principal amount authorized by the Company prior to issuance. The Indentures do not limit the amount of other unsecured indebtedness or securities which may be issued by the Company. Unless otherwise indicated in a Prospectus Supplement, the Debt Securities will not benefit from any covenant or other provision that would afford Holders of such Debt Securities special protection in the event of a highly leveraged transaction involving the Company. Reference is made to the Prospectus Supplement for the following terms of the Offered Debt Securities: (a) the title and aggregate principal amount of the Offered Debt Securities; (b) the date or dates on which the Offered Debt Securities will mature; (c) the rate or rates (which may be fixed or variable) per annum, if any, at which the Offered Debt Securities will bear interest or the method of determining such rate or rates; (d) the date or dates from which such interest, if any, will accrue and the date or dates at which such interest, if any, will be payable; (e) the terms for redemption or early payment, if any, including any mandatory or optional sinking fund or analogous provision; (f) the terms for conversion or exchange, if any, of the Offered Debt Securities; (g) the classification as Senior Debt Securities or Subordinated Debt Securities; (h) whether such Offered Debt Securities will be issued in fully registered form or in bearer form or any combination thereof; (i) whether such Offered Debt Securities will be issued in the form of one or more global securities and whether such global securities are to be issuable in temporary global form or permanent global form; (j) if other than U.S. dollars, the currency, currencies or currency unit or units in which such Offered Debt Securities will be denominated and in which the principal of and premium and interest, if any, on such Offered Debt Securities will be payable; (k) whether, and the terms and conditions on which, the Company or a Holder may elect that, or the other circumstances under which, payment of principal of or premium or interest, if any, on such Offered Debt Securities is to be made in a currency or currencies or currency unit or units other than that in which such Offered Debt Securities are denominated; (l) information with respect to book-entry procedures, if any; and (m) any other specific terms of the Offered Debt Securities. Reference is also made to the Prospectus Supplement for information with respect to any additional covenants that may be included in the terms of the Offered Debt Securities. (Section 301) 4 7 No service charge will be made for any registration of transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. (Section 305) Offered Debt Securities may be sold at a discount (which may be substantial) below their stated principal amount bearing no interest or interest at a rate which at the time of issuance is below market rates. Any material United States federal income tax consequences and other special considerations applicable thereto will be described in the Prospectus Supplement relating to any such Offered Debt Securities. If any of the Offered Debt Securities are sold for any foreign currency or currency unit or if the principal of or premium or interest, if any, on any of the Offered Debt Securities is payable in any foreign currency or currency unit, the restrictions, elections, tax consequences, specific terms and other information with respect to such Offered Debt Securities and such foreign currency or currency unit will be set forth in the Prospectus Supplement relating thereto. EVENTS OF DEFAULT Unless otherwise provided with respect to any series of Debt Securities, the following are Events of Default under each Indenture with respect to the Debt Securities of such series issued under such Indenture: (a) failure to pay principal of or premium, if any, on any Debt Securities of such series when due; (b) failure to pay interest, if any, on any Debt Security of such series when due, continued for 30 days; (c) failure to deposit any mandatory sinking fund payment, when due, in respect of the Debt Securities of such series, continued for 60 days; (d) failure to perform any other covenant of the Company in the applicable Indenture (other than a covenant included in the applicable Indenture for the benefit of a series of Debt Securities other than such series), continued for 90 days after written notice as provided in the applicable Indenture; (e) certain events of bankruptcy, insolvency or reorganization; and (f) any other Event of Default as may be specified with respect to Debt Securities of such series. (Section 501) If an Event of Default with respect to any outstanding series of Debt Securities occurs and is continuing, either the Trustee or the Holders of at least 25% in principal amount of the outstanding Debt Securities of such series (in the case of an Event of Default described in clause (a), (b), (c) or (f) above) or at least 25% in principal amount of all outstanding Debt Securities under the applicable Indenture (in the case of other Events of Default) may declare the principal amount of all the Debt Securities of the applicable series (or of all outstanding Debt Securities under the applicable Indenture, as the case may be) to be due and payable immediately. At any time after a declaration of acceleration has been made, but before a judgment has been obtained, the Holders of a majority in principal amount of the outstanding Debt Securities of such series (or of all outstanding Debt Securities under the applicable Indenture, as the case may be) may, under certain circumstances, rescind and annul such acceleration. (Section 502) Depending on the terms of other indebtedness of the Company outstanding from time to time, an Event of Default under an Indenture may give rise to cross defaults on such other indebtedness of the Company. Each Indenture provides that the Trustee will, within 90 days after the occurrence of a default in respect of any series of Debt Securities, give to the Holders of the Debt Securities of such series notice of all uncured and unwaived defaults known to it; provided, however, that except in the case of a default in the payment of the principal of or premium or interest, if any, on, or any sinking fund installment with respect to, any Debt Securities of such series, the Trustee will be protected in withholding such notice if it in good faith determines that the withholding of such notice is in the interest of the Holders of the Debt Securities of such series; and provided further, however, that such notice shall not be given until at least 60 days after the occurrence of a default in the performance, or breach, of any covenant or warranty of the Company under such Indenture other than for the payment of the principal of or premium or interest, if any, on, or any sinking fund installment with respect to, any Debt Securities of such series. For the purpose of this provision, "default" with respect to Debt Securities of any series means any event which is, or after notice or lapse of time, or both, would become, an Event of Default with respect to the Debt Securities of such series. (Section 602) 5 8 The Holders of a majority in principal amount of the outstanding Debt Securities of any series (or, in certain cases, all outstanding Debt Securities under the applicable Indenture) have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Debt Securities of such series (or of all outstanding Debt Securities under the applicable Indenture). (Section 512) Each Indenture provides that in case an Event of Default shall occur and be continuing, the Trustee shall exercise such of its rights and powers under the applicable Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (Section 601) Subject to such provisions, the Trustee will be under no obligation to exercise any of its rights or powers under either Indenture at the request of any of the Holders of the Debt Securities unless they shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request. (Section 603) The Holders of a majority in principal amount of the outstanding Debt Securities of any series (or, in certain cases, all outstanding Debt Securities under the applicable Indenture) may on behalf of the Holders of all Debt Securities of such series (or of all outstanding Debt Securities under the applicable Indenture) waive any past default under the applicable Indenture, except a default in the payment of the principal of or premium or interest, if any, on any Debt Security or in respect of a provision which under the applicable Indenture cannot be modified or amended without the consent of the Holder of each outstanding Debt Security affected. (Section 513) The Holders of a majority in principal amount of the outstanding Debt Securities affected thereby may on behalf of the Holders of all such Debt Securities waive compliance by the Company with certain restrictive provisions of the Indentures. (Section 1009) The Company is required to furnish to the Trustee annually a statement as to the performance by the Company of certain of its obligations under each Indenture and as to any default in such performance. (Section 1008) MODIFICATION Modifications and amendments of each Indenture may be made by the Company and the Trustee with the consent of the Holders of a majority in principal amount of the outstanding Debt Securities under the applicable Indenture affected thereby; provided, however, that no such modification or amendment may, without the consent of the Holder of each outstanding Debt Security affected thereby, (a) change the stated maturity date of the principal of or any installment of interest, if any, on any Debt Security, (b) reduce the principal amount of or the premium or interest, if any, on any Debt Security, (c) change the place or currency, currencies, or currency unit or units or payment of principal of or premium or interest, if any, on any Debt Security, (d) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security or (e) reduce the percentage in principal amount of outstanding Debt Securities the consent of whose Holders is required for modification or amendment of the Indentures or for waiver of compliance with certain provisions of the Indentures or for waiver of certain defaults. (Section 902) Each Indenture provides that the Company and the Trustee may, without the consent of any Holders of Debt Securities, enter into supplemental indentures for the purposes, among other things, of adding to the Company's covenants, adding additional Events of Default, establishing the form or terms of Debt Securities or curing ambiguities or inconsistencies in the applicable Indenture, provided such action to cure ambiguities or inconsistencies shall not adversely affect the interests of the Holders of the Debt Securities in any material respect. CONSOLIDATION, MERGER AND SALE OF ASSETS The Company, without the consent of any Holders of outstanding Debt Securities, may consolidate with or merge into, or convey, transfer or lease its assets substantially as an entirety to any Person, provided that the Person formed by such consolidation or into which the Company is merged or which acquires or leases the assets of the Company substantially as an entirety is a corporation, partnership or trust organized under the laws of any United States jurisdiction and assumes by supplemental indenture the Company's obligations on the Debt Securities and under the Indentures, that after giving effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing, and that certain other conditions are met. Upon 6 9 compliance with these provisions by a successor Person, the Company will (except in the case of a lease) be relieved of its obligations under the Indentures and the Debt Securities. (Article Eight) DISCHARGE AND DEFEASANCE The Company may terminate its obligations under each Indenture, other than its obligations to pay the principal of and premium and interest, if any, on the Debt Securities of any series and certain other obligations, if it (a) irrevocably deposits or causes to be irrevocably deposited with the Trustee as trust funds money or U.S. Government Obligations maturing as to principal and interest sufficient to pay the principal of, any interest on, and any mandatory sinking funds in respect of, all outstanding Debt Securities of such series on the stated maturity of such payments or on any redemption date and (b) complies with any additional conditions specified to be applicable with respect to the covenant defeasance of Debt Securities of such series. (Section 401) The terms of any series of Debt Securities may also provide for legal defeasance pursuant to each Indenture. In such case, if the Company (a) irrevocably deposits or causes to be irrevocably deposited money or U.S. Government Obligations as described above, (b) makes a request to the Trustee to be discharged from its obligations on the Debt Securities of such series and (c) complies with any additional conditions specified to be applicable with respect to legal defeasance of Securities of such series, then the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Debt Securities of such series and the obligations of the Company under the applicable Indenture and the Debt Securities of such series to pay the principal of and premium and interest, if any, on the Debt Securities of such series shall cease, terminate and be completely discharged, and the Holders thereof shall thereafter be entitled only to payment out of the money or U.S. Government Obligations deposited with the Trustee as aforesaid, unless the Company's obligations are revived and reinstated because the Trustee is unable to apply such trust fund by reason of any legal proceeding, order or judgment. (Sections 403 and 404) The term "U.S. Government Obligations" is defined in each Indenture as direct noncallable obligations of, or noncallable obligations the payment of principal of and interest on which is guaranteed by, the United States of America, or to the payment of which obligations or guarantees the full faith and credit of the United States of America is pledged, or beneficial interests in a trust the corpus of which consists exclusively of money or such obligations or a combination thereof. FORM, EXCHANGE, REGISTRATION AND TRANSFER Debt Securities are issuable in definitive form as Registered Debt Securities, as Bearer Debt Securities or both. Unless otherwise indicated in an applicable Prospectus Supplement, Bearer Debt Securities will have interest coupons attached. Debt Securities are also issuable in temporary or permanent global form. (Section 301) See "Global Securities." Registered Debt Securities of any series will be exchangeable for other Registered Debt Securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations. In addition, with respect to any series of Bearer Debt Securities, at the option of the Holder, subject to the terms of the applicable Indenture, Bearer Debt Securities (with all unmatured coupons, except as provided below, and all matured coupons in default) of such series will be exchangeable into Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor. Bearer Debt Securities surrendered in exchange for Registered Debt Securities between a Regular Record Date or a Special Record Date and the relevant date for payment of interest shall be surrendered without the coupon relating to such date for payment of interest, and interest accrued as of such date will not be payable in respect of the Registered Debt Security issued in exchange for such Bearer Debt Security, but will be payable only to the Holder of such coupon when due in accordance with the terms of the applicable Indenture. (Section 305) In connection with its sale during the restricted period (as defined below), no Bearer Debt Security (including a Debt Security in permanent global form that is either a Bearer Debt Security or exchangeable for Bearer Debt Securities) shall be mailed or otherwise delivered to any location in the United States (as defined under "--Limitations on Issuance of 7 10 Bearer Debt Securities") and a Bearer Debt Security may be delivered outside the United States in definitive form in connection with its original issuance only if prior to delivery the Person entitled to receive such Bearer Debt Security furnishes written certification, in the form required by the applicable Indenture, to the effect that such Bearer Debt Security is owned by: (a) a Person (purchasing for its own account) who is not a United States Person (as defined under "--Limitations on Issuance of Bearer Debt Securities"); (b) a United States Person who (i) is a foreign branch of a United States financial institution purchasing for its own account or for resale or (ii) acquired such Bearer Debt Security through the foreign branch of a United States financial institution and who for purposes of the certification holds such Bearer Debt Security through such financial institution on the date of certification and, in either case, such United States financial institution certifies to the Company or the distributor selling the Bearer Debt Security within a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder, or (c) a United States or foreign financial institution for purposes of resale within the "restricted period" as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7). A financial institution described in clause (c) of the preceding sentence (whether or not also described in clauses (a) and (b)) must certify that it has not acquired the Bearer Debt Security for purpose of resale, directly or indirectly, to a United States Person or to a Person within the United States or its possessions. In the case of a Bearer Debt Security in permanent global form, such certification must be given in connection with notation of a beneficial owner's interest therein in connection with the original issuance of such Debt Security or upon exchange of a portion of a temporary global Security. (Section 303) See "--Limitations on Issuance of Bearer Debt Securities" and "Global Securities." Debt Securities may be presented for exchange as provided above, and Registered Debt Securities may be presented for registration of transfer (with the form of transfer endorsed thereon duly executed), at the office of the Security Registrar or at the office of any transfer agent designated by the Company for such purpose with respect to any series of Debt Securities and referred to in an applicable Prospectus Supplement, without service charge and upon payment of any taxes and other governmental charges as described in the applicable Indenture. Such transfer or exchange will be effected upon the Security Registrar or such transfer agent, as the case may be, being satisfied with the documents of title and identity of the Person making the request. The Company has appointed the Trustee as Security Registrar. (Section 305) If a Prospectus Supplement refers to any transfer agents (in addition to the Security Registrar) initially designated by the Company with respect to any series of Debt Securities, the Company may at any time rescind the designation of any such transfer agent or approve a change in the location through which any such transfer agent acts, except that, if Debt Securities of a series are issuable solely as Registered Debt Securities, the Company will be required to maintain a transfer agent in each Place of Payment for such series and, if Debt Securities of a series are issuable as Bearer Debt Securities, the Company will be required to maintain (in addition to the Security Registrar) a transfer agent in a Place of Payment for such series located outside the United States. The Company may at any time designate additional transfer agents with respect to any series of Debt Securities. (Section 1002) In the event of any redemption in part, the Company shall not be required to (a) issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 days prior to the selection of Debt Securities of that series for redemption and ending on the close of business on (i) if Debt Securities of the series are issuable only as Registered Debt Securities, the day of mailing of the relevant notice of redemption and (ii) if Debt Securities of the series are issuable as Bearer Debt Securities, the day of the first publication of the relevant notice of redemption or, if Debt Securities of the series are also issuable as Registered Debt Securities and there is no publication, the day of mailing of the relevant notice of redemption; (b) register the transfer of or exchange any Registered Debt Security, or portion thereof, called for redemption, except the unredeemed portion of any Registered Debt Security being redeemed in part; or (c) exchange any Bearer Debt Security called for redemption, except to exchange such Bearer Debt Security for a Registered Debt Security of that series and like tenor which is simultaneously surrendered for redemption. (Section 305) PAYMENT AND PAYING AGENTS Unless otherwise indicated in an applicable Prospectus Supplement, payment of principal of and premium and interest, if any, on Bearer Debt Securities will be payable, subject to any applicable laws and regulations, in the designated 8 11 currency or currency unit, at the offices of such Paying Agents outside the United States as the Company may designate from time to time, at the option of the Holder, by check or by transfer to an account maintained by the payee with a bank located outside the United States; provided, however, that the written certification described above under "-- Form, Exchange, Registration and Transfer" has been delivered prior to the first actual payment of interest. Unless otherwise indicated in an applicable Prospectus Supplement, payment of interest on Bearer Debt Securities on any Interest Payment Date will be made only against surrender to the Paying Agent of the coupon relating to such Interest Payment Date. (Section 1001) No payment with respect to any Bearer Debt Security will be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to any account maintained with a bank located in the United States, nor shall any payments be made in respect of Bearer Debt Securities upon presentation to the Company or its designated Paying Agents within the United States. Notwithstanding the foregoing, payments of principal of and premium and interest, if any, on Bearer Debt Securities denominated and payable in U.S. dollars will be made at the office of the Company's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount thereof in U.S. dollars at all offices or agencies outside the United States is illegal or effectively precluded by exchange controls or other similar restrictions. (Section 1002) Unless otherwise indicated in an applicable Prospectus Supplement, payment of principal of and premium and interest, if any, on Registered Debt Securities will be made in the designated currency or currency unit at the office of such Paying Agent or Paying Agents as the Company may designate from time to time, except that at the option of the Company payment of any interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register. Unless otherwise indicated in an applicable Prospectus Supplement, payment of any installment of interest on Registered Debt Securities will be made to the Person in whose name such Registered Debt Security is registered at the close of business on the Regular Record Date for such interest. (Section 307) Unless otherwise indicated in an applicable Prospectus Supplement, the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York will be designated as a Paying Agent for the Company for payments with respect to Debt Securities which are issuable solely as Registered Debt Securities, and the Company will maintain a Paying Agent outside the United States for payments with respect to Debt Securities (subject to limitations described above in the case of Bearer Debt Securities) which are issuable solely as Bearer Debt Securities, or as both Registered Debt Securities and Bearer Debt Securities. Any Paying Agents outside the United States and any other Paying Agents in the United States initially designated by the Company for the Debt Securities will be named in an applicable Prospectus Supplement. The Company 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, except that, if Debt Securities of a series are issuable solely as Registered Debt Securities, the Company will be required to maintain a Paying Agent in each Place of Payment for such series and, if Debt Securities of a series are issuable as Bearer Debt Securities, the Company will be required to maintain (a) a Paying Agent in the Borough of Manhattan, The City of New York for principal payments with respect to any Registered Debt Securities of the series (and for payments with respect to Bearer Debt Securities of the series in the circumstances described above, but not otherwise), and (b) a Paying Agent in a Place of Payment located outside the United States where Debt Securities of such series and any coupons appertaining thereto may be presented and surrendered for payment; provided, however, that if the Debt Securities of such series are listed on the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent in London, Luxembourg or any other required city located outside the United States, as the case may be, for the Debt Securities of such series. (Section 1002) All moneys paid by the Company to a Paying Agent for the payment of principal of and any premium or interest on any Debt Security which remain unclaimed at the end of three years after such principal, premium or interest shall have become due and payable will (subject to applicable escheat laws) be repaid to the Company and the Holder of such Debt Security or any coupon will thereafter look only to the Company for payment thereof. (Section 1003) 9 12 LIMITATIONS ON ISSUANCE OF BEARER DEBT SECURITIES In compliance with United States federal tax laws and regulations, Bearer Debt Securities (including securities in permanent global form that are either Bearer Debt Securities or exchangeable for Bearer Debt Securities) will not be offered or sold during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) (generally, the first 40 days after the closing date, and, with respect to unsold allotments, until sold) within the United States or to United States Persons (each as defined below) other than to an office located outside the United States of a United States financial institution (as defined in Section 1.165-12(c)(1)(v) of the United States Treasury Regulations), purchasing for its own account or for resale or for the account of certain customers, that provides a certificate stating that it agrees to comply with the requirements of Section 165(j)(3)(A),(B) or (C) of the Code and the United States Treasury Regulations thereunder, or to certain other Persons described in Section 1.163-5(c)(2)(i)(D)(1)(iii)(B) of the United States Treasury Regulations. Moreover, such Bearer Debt Securities will not be delivered in connection with their sale during the restricted period within the United States. Any underwriters, agents and dealers participating in the offering of Bearer Debt Securities must covenant that they will not offer or sell during the restricted period any Bearer Debt Securities within the United States or to United States Persons (other than the persons described above) or deliver in connection with the sale of Bearer Debt Securities during the restricted period any Bearer Debt Securities within the United States and that they have in effect procedures reasonably designed to ensure that their employees and agents who are directly engaged in selling the Bearer Debt Securities are aware of the restrictions described above. No Bearer Debt Security (other than a temporary global Bearer Debt Security) will be delivered in connection with its original issuance nor will interest be paid on any Bearer Debt Security until receipt by the Company of the written certification described above under "--Form, Exchange, Registration and Transfer." Each Bearer Debt Security, other than a temporary global Bearer Debt Security, will bear a legend to the following effect: "Any United States person who holds this obligation will be subject to limitations under the United States income tax laws, including the limitations provided in Sections 165(j) and 1287(a) of the Internal Revenue Code." United States Holders of Bearer Debt Securities generally will not be entitled to deduct any loss sustained on Bearer Debt Securities (other than Bearer Debt Securities having a maturity of one year or less from the date of issue). As used herein, "United States Person" means any citizen or resident of the Untied States, any corporation, partnership or other entity created or organized in or under the laws of the United States and any estate or trust the income of which is subject to United States federal income taxation regardless of its source, and "United States" means the United States of America (including the states and the District of Columbia) and its possessions. MEETINGS The Indentures contain provisions for convening meetings of the Holders of Debt Securities of a series. (Section 1301) A meeting may be called at any time by the Trustee, and also, upon request, by the Company or the Holders of at least 10% in principal amount of the Outstanding Debt Securities of such series, in any such case upon notice given as described under "--Notices" below. (Section 1302) Except for any consent that must be given by the Holder of each Outstanding Debt Security affected thereby, as described under "--Modification" above, any resolution presented at a meeting or adjourned meeting at which a quorum is present may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Debt Securities of that series; provided, however, that, except for any consent that must be given by the Holder of each Outstanding Debt Security affected thereby, as described under "-- Modification" above, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the Holders of a specified percentage, which is less than a majority in principal amount of the Outstanding Debt Securities of a series, may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Debt Securities of that series. Subject to the proviso set forth above, any resolution passed or decision taken at any meeting of the Holders of Debt Securities of any series duly held in accordance with the Indenture will be binding on all Holders of Debt Securities of that series and any related coupons. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be Persons holding or representing a majority in principal amount of the Outstanding Debt Securities of a series. (Section 1304) 10 13 NOTICES Except as otherwise provided in the Indentures, notices to Holders of Bearer Debt Securities will be given by publication at least twice in a daily newspaper in The City of New York and London or other capital city in Western Europe and in such other city or cities as may be specified in such Securities. Notices to Holders of Registered Debt Securities will be given by mail to the addresses of such Holders as they appear in the Security Register. (Section 107) THE TRUSTEE Each Indenture contains certain limitations on the right of the Trustee, as a creditor of the Company, to obtain payment of claims in certain cases and to realize on certain property received with respect to any such claims, as security or otherwise. (Section 613) The Trustee is permitted to engage in other transactions, except that, if it acquires any conflicting interest (as defined), it must eliminate such conflict or resign. (Section 608) The Trustee has made loans to the Company and its subsidiaries and affiliates from time to time in the ordinary course of business and at prevailing interest rates under agreements with commercial bank groups. In addition, the Trustee serves as a depositary of funds of, and performs other services for, the Company and its trustee under two other indentures pursuant to which several outstanding series of the Company's debentures have been issued. SUBORDINATION The payment of the principal of and premium, if any, and interest on the Subordinated Debt Securities is, to the extent set forth in the Subordinated Indenture, subordinated in right of payment to the prior payment in full of all Senior Indebtedness, whether now outstanding or incurred in the future (Section 1301 of the Subordinated Indenture). Upon any payment or distribution of assets of the Company to creditors upon any liquidation, dissolution, winding up, assignment for the benefit of creditors or marshalling of assets and liabilities or any bankruptcy, insolvency, receivership, liquidation, reorganization or similar proceedings of the Company, the holders of all Senior Indebtedness will first be entitled to receive any payment in full of all amounts due or to become due thereon before the Holders of the Subordinated Debt Securities will be entitled to receive any payment (other than any payment in the form of Permitted Junior Securities) on account of the principal of or premium, if any, or interest on the Subordinated Debt Securities (Section 1302 of the Subordinated Indenture). No payment (other than any payment in the form of Permitted Junior Securities) on account of principal of and premium, if any, or interest on the Subordinated Debt Securities may be made if a Payment Event of Default shall have occurred and be continuing. In addition, no payment (other than any payment in the form of Permitted Junior Securities) on account of principal of or premium, if any, or interest on the Subordinated Debt Securities may be made if a Non-payment Event of Default shall have occurred and be continuing, for the period (a "Payment Blockage Period") commencing on receipt of notice of such event of default by the Trustee from holders of at least a majority in principal amount of any Designated Senior Indebtedness (or any other trustee or other representative therefor) and ending on the earlier of (i) the date such Non-payment Event of Default has been cured or waived or has ceased to exist or any acceleration of such Designated Senior Indebtedness has been rescinded or annulled or such Designated Senior Indebtedness shall have been discharged and (ii) the date 176 days after such receipt of notice. Any number of such notices may be given; provided, however, that, during any 360-day period, the aggregate Payment Blockage Periods shall not exceed 176 days and there shall be a period of at least 184 consecutive days when no Payment Blockage Period is in effect. No default existing or continuing when a Payment Blockage Period begins may be the basis for any subsequent Payment Blockage Period unless such default has been cured for a period of at least 90 consecutive days. In the event that, notwithstanding the restrictions described in the preceding sentences, the Company makes any payment to the Trustee or a Holder of Subordinated Debt Securities prohibited by any such restriction, with such Trustee or Holder, as the case may be, knowing of such contravention before receipt thereof, then such payment will be required to be paid over and delivered forthwith to the Company to the extent necessary to pay in full all such Senior Indebtedness (Section 1302 of the Subordinated Indenture). 11 14 The subordination rights of holders of Senior Indebtedness will not be prejudiced or impaired by any acts or failures to act by the Company or by any such holder (Section 1308 of the Subordinated Indenture). The subordination of the Subordinated Debt Securities set forth above will not prevent the occurrence of any Event of Default under the Subordinated Indenture. Furthermore, the subordination of the Subordinated Debt Securities as set forth above will not impair, as between the Company, the Holders of the Subordinated Debt Securities and creditors of the Company other than holders of Senior Indebtedness, the obligations of the Company to make payments on the Subordinated Debt Securities in accordance with their terms. In certain circumstances, as set forth in the Indenture, the Holders of Subordinated Debt Securities will be subrogated to certain rights of the holders of Senior Indebtedness upon payment in full of all Senior Indebtedness (Section 1302 of the Subordinated Indenture). By reason of such subordination, in the event of insolvency of the Company, the holders of Senior Indebtedness (as well as other creditors of the Company who are holders of indebtedness that is not subordinated to the Senior Indebtedness) may recover more, ratably, than the Holders of the Subordinated Debt Securities. The Subordinated Debt Securities will also be effectively subordinated to all liabilities, including trade payables and capitalized lease obligations, if any, of the Company's subsidiaries. Any right of the Company to receive the assets of any of its subsidiaries upon their liquidation or reorganization (and the consequent right of the Holders of the Subordinated Debt Securities to participate in those assets) will be subject to the prior payment of claims of that subsidiary's creditors (including trade creditors), except to the extent that the Company is itself a creditor of such subsidiary, in which case the claims of the Company would still be subject to the prior payment of claims secured by security interests in the assets of such subsidiary and any other indebtedness of such subsidiary senior to that held by the Company. If Subordinated Debt Securities are issued under the Subordinated Indenture, the aggregate principal amount of Senior Indebtedness outstanding as of a recent date will be set forth in the Prospectus Supplement. The Subordinated Indenture does not restrict the amount of Senior Indebtedness that the Company may incur. CERTAIN DEFINITIONS The term "Bank Credit Facility" is defined in the Indenture as the Company's existing bank credit facility and any renewals, amendments, extensions, supplements, modifications, refinancing or replacements thereof (whether or not the principal amount outstanding thereunder shall be increased)(Section 101 of the Subordinated Indenture). The term "Designated Senior Indebtedness" is defined in the Subordinated Indenture as (i) all Senior Indebtedness under the Bank Credit Facility if the sum of the amounts outstanding under the Bank Credit Facility and the amounts available for borrowing thereunder is equal to or greater than $25,000,000 and (ii) all other Senior Indebtedness having an outstanding principal amount equal to or greater than $25,000,000 (provided, however, that the agreements, indentures or other instruments evidencing any Senior Indebtedness referred to in this clause (ii) specifically state that such Senior Indebtedness shall be classified as "Designated Senior Indebtedness" for purposes of the Subordinated Indenture) (Section 101 of the Subordinated Indenture). The term "Indebtedness," as applied to any Person, is defined in the Subordinated Indenture as all indebtedness, whether or not represented by bonds, debentures, notes or other securities, created or assumed by such Person for the repayment of money borrowed, and obligations, computed in accordance with generally accepted accounting principles, as lessee under leases that should be, in accordance with generally accepted accounting principles, treated as capital leases. All Indebtedness secured by a lien upon property owned by the Company or any Subsidiary and upon which Indebtedness such Person customarily pays interest, although such Person has not assumed or become liable for the payment of such Indebtedness, shall be deemed to be Indebtedness of such Person. All Indebtedness of others guaranteed as to payment of principal by such Person or in effect guaranteed by such Person through a contingent agreement to purchase such Indebtedness shall also be deemed to be Indebtedness of such Person (Section 101 of the Subordinated Indenture). 12 15 The term "Non-payment Event of Default" is defined in the Subordinated Indenture as any event (other than a Payment Event of Default) the occurrence of which entitles any one or more persons to accelerate the maturity of any Designated Senior Indebtedness (Section 101 of the Subordinated Indenture). The term "Payment Event of Default" is defined in the Subordinated Indenture as any default in the payment of principal of or premium, if any, or interest on any Designated Senior Indebtedness when due (whether at maturity, upon acceleration or otherwise) (Section 101 of the Subordinated Indenture). The term "Permitted Junior Securities" is defined in the Subordinated Indenture as subordinated debt securities of the Company (or any successor obligor with respect to the Senior Indebtedness) provided for by a plan of reorganization or readjustment that are subordinated in right of payment to all Senior Indebtedness that may be outstanding to substantially the same extent as, or to a greater extent than, the Subordinated Debt Securities are subordinated as provided in the Subordinated Indenture (Section 101 of the Subordinated Indenture). The term "Senior Indebtedness" is defined in the Subordinated Indenture as all obligations of the Company under the Bank Credit Facility and (b) all other Indebtedness of the Company, whether currently outstanding or hereafter issued; provided that "Senior Indebtedness" shall not include (i) the Company's 7% Convertible Subordinated Notes due 2001, (ii) the Company's 8% Convertible Subordinated Debentures and 6% Convertible Subordinated Debentures, if and when issued, for which the Company's existing preferred stock is exchangeable, (iii) any obligation owed to a Subsidiary or an Affiliate of the Company, (iv) any obligation that by the terms of the instrument creating or evidencing the same is not superior in right of payment to the Subordinated Debt Securities, and (v) any obligation constituting a trade account payable (Section 101 of the Subordinated Indenture). The term "Subsidiary" is defined in the Indenture as a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency (Section 101). DESCRIPTION OF PREFERRED STOCK The following is a description of certain general terms and provisions of the Preferred Stock to which any Prospectus Supplement may relate. The particular terms of any series of Preferred Stock to be issued hereby will be described in the applicable Prospectus Supplement. If so indicated in a Prospectus Supplement, the terms of any such series may differ from the terms set forth below. The summary of terms of the Company's preferred stock (including the Preferred Stock) contained in this Prospectus does not purport to be complete and is subject to, and qualified in its entirety by, the provisions of the Company's Certificate of Incorporation and the certificate of designations relating to each series of preferred stock, including the Preferred Stock ("Certificate of Designations"), which will be filed as an exhibit to or incorporated by reference in the Registration Statement of which this Prospectus is a part at or prior to the time of issuance of such series of the Preferred Stock. The Company's Certificate of Incorporation authorizes the issuance of 10,000,000 shares of preferred stock, par value of $.01 per share. On June 30, 1994, 2,185,005 shares of preferred stock were outstanding. Preferred stock may be issued from time to time in one or more classes or series with such rights and preferences, including voting, dividend and conversion rights and other terms, as the Board of Directors may establish without any further authorization by the stockholders. The Preferred Stock shall have the dividend, liquidation, redemption and voting rights set forth below unless otherwise provided in a Prospectus Supplement relating to a particular series of the Preferred Stock. The applicable Prospectus 13 16 Supplement will describe the following terms of the series of Preferred Stock in respect of which this Prospectus is being delivered: (1) the designation and stated value per share of such Preferred Stock and the number of shares offered; (2) the amount of liquidation preference per share; (3) the initial public offering price at which such Preferred Stock will be issued; (4) the dividend rate (or method of calculation), the dates on which dividends shall be payable and the dates from which dividends shall commence to cumulate, if any; (5) any redemption or sinking fund provisions; (6) any conversion or exchange rights; (7) whether the Company has elected to offer Depositary Shares as described below under "Description of Depositary Shares"; and (8) any additional voting, dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions. GENERAL The Preferred Stock offered hereby will be issued in one or more series. The holders of Preferred Stock will have no preemptive rights. Preferred Stock, upon issuance against full payment of the purchase price therefor, will be fully paid and nonassessable. Neither the par value nor the liquidation preference is indicative of the price at which the Preferred Stock will actually trade on or after the date of issuance. The applicable Prospectus Supplement will contain a description of certain United States federal income tax consequences relating to the purchase and ownership of the series of Preferred Stock offered by such Prospectus Supplement. As described under "Description of Depositary Shares," the Company may, at its option, elect to offer Depositary Shares evidenced by depositary receipts ("Depositary Receipts"), each representing a fractional interest (to be specified in the Prospectus Supplement relating to the particular series of the Preferred Stock) in a share of the particular series of the Preferred Stock issued and deposited with a Depositary (as defined below). RANK The Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up and dissolution of the Company, rank prior to the Company's Common Stock and to all other classes and series of equity securities of the Company now or hereinafter authorized, issued or outstanding (the Common Stock and such other classes and series of equity securities collectively may be referred to herein as the "Junior Stock"), other than any classes or series of equity securities of the Company ranking on a parity with (the "Parity Stock") or senior to (the "Senior Stock") the Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution of the Company. The Preferred Stock will be junior to all outstanding debt of the Company. The Preferred Stock will be subject to creation of Senior Stock, Parity Stock and Junior Stock to the extent not expressly prohibited by the Company's Certification of Incorporation. DIVIDENDS Holders of shares of Preferred Stock will be entitled to receive, when, as and if declared by the Board of Directors out of funds of the Company legally available for payment, cash dividends, payable at such dates and at such rates per share per annum as set forth in the applicable Prospectus Supplement. Such rate may be fixed or variable or both. Each declared dividend will be payable to holders of record as they appear at the close of business on the stock books of the Company (or, if applicable, on the records of the Depositary) on such record dates, not more than 60 calendar days preceding the payment dates therefor, as are determined by the Board of Directors (each of such dates, a "Record Date"). Such dividends may be cumulative or noncumulative, as provided in the Prospectus Supplement. If dividends on a series of Preferred Stock are noncumulative and if the Board of Directors fails to declare a dividend in respect of a dividend period with respect to such series, then holders of such Preferred Stock will have no right to receive a dividend in respect of such dividend period, and the Company will have no obligation to pay the dividends for such period, whether or not dividends are declared payable on any future Dividend Payment Dates. Dividends on the shares of each series of Preferred Stock for which dividends are cumulative will accrue from the date on which the Company initially issues shares of such series. No full dividends shall be declared or paid or set apart for payment on preferred stock of the Company of any series 14 17 ranking, as to dividends, on a parity with or junior to the series of Preferred Stock offered by the applicable Prospectus Supplement for any period unless full dividends for the immediately preceding dividend period on such Preferred Stock (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such Preferred Stock are cumulative) have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof is set apart for such payment. When dividends are not so paid in full (or a sum sufficient for such full payment is not so set apart) upon such Preferred Stock and any other preferred stock of the Company ranking on a parity as to dividends with the Preferred Stock, dividends upon shares of such Preferred Stock and dividends on such other preferred stock shall be declared pro rata so that the amount of dividends declared per share on such Preferred Stock and such other preferred stock shall in all cases bear to each other the same ratio that accrued dividends for the then-current dividend period per share on the shares of such Preferred Stock (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such Preferred Stock are cumulative) and accrued dividends, including required or permitted accumulations, if any, on shares of such other preferred stock, bear to each other. Unless full dividends on the series of Preferred Stock offered by the applicable Prospectus Supplement have been declared and paid or set apart for payment for the immediately preceding dividend period (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such Preferred Stock are cumulative) (a) no cash dividend or distribution (other than in shares of Junior Stock) may be declared, set aside or paid on the Junior Stock; (b) the Company may not repurchase, redeem or otherwise acquire any shares of its Junior Stock (except by conversion into or exchange for Junior Stock); and (c) the Company may not, directly or indirectly, repurchase, redeem or otherwise acquire any shares of Preferred Stock or Parity Stock otherwise than pursuant to certain pro rata offers to purchase or a concurrent redemption of all, or a pro rata portion, of the outstanding shares of such Preferred Stock and Parity Stock (except by conversion into or exchange for Junior Stock). CONVERTIBILITY The terms, if any, on which shares of Preferred Stock of any series may be exchanged for or converted (mandatorily or otherwise) into shares of Common Stock of the Company, another series of Preferred Stock, Debt Securities or other securities of the Company will be set forth in the Prospectus Supplement relating thereto. REDEMPTION The terms, if any, on which shares of Preferred Stock of any series may be redeemed will be set forth in the related Prospectus Supplement. LIQUIDATION Unless otherwise specified in the applicable Prospectus Supplement, in the event of a voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Company, the holders of a series of Preferred Stock will be entitled, subject to the rights of creditors, but before any distribution or payment to the holders of Common Stock or any other security ranking junior to the Preferred Stock on liquidation, dissolution or winding up of the Company, to receive an amount per share as set forth in the related Prospectus Supplement plus accrued and unpaid dividends for the then-current dividend period (including any accumulation in respect of unpaid dividends for prior dividend periods, if dividends on such series of Preferred stock are cumulative). If the amounts available for distribution with respect to the Preferred Stock and all other outstanding stock of the Company ranking on a parity with the Preferred Stock upon liquidation are not sufficient to satisfy the full liquidation rights of all the outstanding Preferred Stock and stock ranking on a parity therewith, then the holders of each series of such stock will share ratably in any such distribution of assets in proportion to the full respective preferential amount (which in the case of preferred stock may include accumulated dividends) to which they are entitled. After payment of the full amount of the liquidation preferences, the holders of shares of Preferred Stock will not be entitled to any further participation in any distribution of assets by the Company. VOTING The Preferred Stock of a series will not be entitled to vote, except as provided below or in the applicable Prospectus 15 18 Supplement and as required by applicable law. Unless otherwise specified in the related Prospectus Supplement, at any time dividends in an amount equal to six quarterly dividend payments on the Preferred Stock shall have accrued and be unpaid, holders of the Preferred Stock will have the right to a separate class vote (together with the holders of shares of any Parity Stock upon which like voting rights have been conferred and are exercisable, "Voting Parity Stock") to elect two members of the Board of Directors at any meeting of stockholders held during the period such dividends remain in arrears. Such voting rights will terminate (and the term of office of all directors so elected will terminate) when all dividends on the Preferred Stock have been paid in full or set apart for payment. Additionally, without the affirmative vote of the holders of two-thirds of the shares of Preferred Stock then outstanding (voting separately as a class together with any Voting Parity Stock), the Company may not, either directly or indirectly or through merger or consolidation with any other corporation, (i) approve the authorization, creation or issuance, or an increase in the authorized or issued amount, of any class or series of stock ranking prior to the shares of Preferred Stock in rights and preferences, (ii) amend, alter or repeal its Certificate of Incorporation or the Certificate of Designations so as to materially and adversely change the specific terms of the Preferred Stock, or (iii) effect any reclassification of the Preferred Stock. An amendment which increases the number of authorized shares of or authorizes the creation or issuance of other classes of preferred stock ranking junior to or on a parity with the Preferred Stock with respect to the payment of dividends or distribution of assets upon liquidation, dissolution or winding up, or substitute the surviving entity in a merger, consolidation, reorganization or other business combination for the Company, shall not be considered to be such an adverse change. As more fully described under "Description of Depositary Shares" below, if the Company elects to issue Depositary Shares, each representing a fraction of a share of a series of the Preferred Stock, each such Depositary Share will, in effect, be entitled to vote such fraction of a vote per Depositary Share. NO OTHER RIGHTS The shares of a series of Preferred Stock will not have any preferences, voting powers or relative, participating, optional or other special rights except as set forth above or in the related Prospectus Supplement, the Certificate of Incorporation and in the Certificate of Designations or as otherwise required by law. TRANSFER AGENT AND REGISTRAR The transfer agent for each series of Preferred Stock will be described in the related Prospectus Supplement. EXISTING PREFERRED STOCK In November 1991, the Company issued 1,200,000 shares of $4.00 Exchangeable Convertible Preferred Stock, 1,150,005 of which were outstanding on June 30, 1994. Holders of such stock are entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cash dividends at an annual rate of $4.00 per share, payable quarterly in arrears. Upon liquidation, such holders are entitled to receive a preference of $50.00 per share, plus accrued and unpaid dividends to the payment date. Each share of such preferred stock is convertible into 5.51 shares of Common Stock at any time prior to redemption (subject to adjustment), equivalent to a conversion price of $9.07 for each share of Common Stock. The Company has the right to exchange the shares of such preferred stock for the Company's 8% convertible subordinated debentures due 2006 on any dividend payment date and, subject to certain conditions, has the right to redeem the preferred stock beginning December 31, 1994. In April 1993, the Company issued 1,035,000 shares (represented by 4,140,000 depositary shares) of $6.00 Convertible Exchangeable Preferred Stock, all of which were outstanding on June 30, 1994. Holders of such stock are entitled to receive, when, as and if declared by the Board of Directors out of funds legally available therefor, cash dividends at an annual rate of $6.00 per share ($1.50 per depositary share), payable quarterly in arrears. Upon liquidation, such holders are entitled to receive a preference of $100.00 per share, plus accrued and unpaid dividends to the payment date. Each share of such preferred stock is convertible into 4.762 shares of Common Stock at any time prior to redemption (subject to adjustment), equivalent to a conversion price of $21.00 for each share of Common Stock. The Company has the right to exchange the shares of such preferred stock for the Company's 6% convertible subordinated debentures due 2008 on 16 19 any dividend date payment date and has the right to redeem the 6% preferred stock beginning March 31, 1996. The two existing classes of preferred stock rank prior to the Common Stock, and on a parity with each other, as to dividends and upon liquidation, dissolution or winding up. DESCRIPTION OF DEPOSITARY SHARES The description set forth below and in any Prospectus Supplement of certain provisions of the Deposit Agreement (as defined below) and of the Depositary Shares and Depositary Receipts does not purport to be complete and is subject to and qualified in its entirety by reference to the forms of Deposit Agreement and Depositary Receipts relating to each series of the Preferred Stock which have been or will be filed with the Commission at or prior to the time of the offering of such series of the Preferred Stock. GENERAL The Company may, at its option, elect to offer fractional interests in shares of Preferred Stock, rather than shares of Preferred Stock. In the event such option is exercised, the Company will provide for the issuance by a Depositary to the public of receipts for Depositary Shares, each of which will represent a fractional interest as set forth in the applicable Prospectus Supplement. The shares of any series of the Preferred Stock underlying the Depositary Shares will be deposited under a separate Deposit Agreement (the "Deposit Agreement") between the Company and a bank or trust company selected by the Company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000 (the "Depositary"). The Prospectus Supplement relating to a series of Depositary Shares will set forth the name and address of the Depositary. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will be entitled, in proportion to the applicable fractional interest in a share of Preferred Stock underlying such Depositary Shares, to all the rights and preferences of the Preferred Stock underlying such Depositary Share (including dividend, voting, redemption, conversion and liquidation rights). The Depositary Shares will be evidenced by Depositary Receipts issued pursuant to the Deposit Agreement. Pending the preparation of definitive engraved Depositary Receipts, the Depositary may, upon the written order of the Company, issue temporary Depositary Receipts substantially identical to (and entitling the holders thereof to all the rights pertaining to) the definitive Depositary Receipts but not in definitive form. Definitive Depositary Receipts will be prepared thereafter without unreasonable delay, and temporary Depositary Receipts will be exchangeable for definitive Depositary Receipts at the Company's expense. Upon surrender of Depositary Receipts at the office of the Depositary and upon payment of the charges provided in the Deposit Agreement and subject to the terms thereof, a holder of Depositary Shares is entitled to have the Depositary deliver to such holder the whole shares of Preferred Stock underlying the Depositary Shares evidenced by the surrendered Depositary Receipts. DIVIDENDS AND OTHER DISTRIBUTIONS The Depositary will distribute all cash dividends or other cash distributions received in respect of the Preferred Stock to the record holders of Depositary Shares relating to such Preferred Stock in proportion to the numbers of such Depositary Shares owned by such holders on the relevant record date. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributed shall be added to and treated as part of the next sum received by the Depositary for distribution to record holders of Depositary Shares. 17 20 In the event of a distribution other than in cash, the Depositary will distribute property received by it to the record holders of Depositary Shares entitled thereto, unless the Depositary determines that it is not feasible to make such distribution, in which case the Depositary may, with the approval of the Company, sell such property and distribute the net proceeds from such sale to such holders. The Deposit Agreement will also contain provisions relating to how any subscription or similar rights offered by the Company to holders of the Preferred Stock will be made available to holders of Depositary Shares. REDEMPTION OF DEPOSITARY SHARES If a series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the proceeds received by the Depositary resulting from the redemption, in whole or in part, of such series of the Preferred Stock held by the Depositary. The Depositary will mail notice of redemption not less than 30 and not more than 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be so redeemed at their respective addresses appearing in the Depositary's books. The redemption price per Depositary Share will be equal to the applicable fraction of the redemption price per share payable with respect to such series of the Preferred Stock. Whenever the Company redeems shares of Preferred Stock held by the Depositary, the Depositary will redeem as of the same redemption date the number of Depositary Shares relating to shares of Preferred Stock so redeemed. If less than all of the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as may be determined by the Company. After the date fixed for redemption, the Depositary Shares so called for redemption will no longer be deemed to be outstanding and all rights of the holders of the Depositary shares will cease, except the right to receive the moneys payable upon such redemption and any money or other property to which the holders of such Depositary Shares were entitled upon such redemption upon surrender to the Depositary of the Depositary Receipts evidencing such Depositary Shares. VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Depositary will mail the information contained in such notice of meeting to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of any of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Depositary as to the exercise of the voting rights pertaining to the number of shares of Preferred Stock underlying such holder's Depositary Shares. The Depositary will endeavor, insofar as practicable, to vote the number of shares of Preferred Stock underlying such Depositary Shares in accordance with such instructions, and the Company will agree to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to do so. The Depositary will abstain from voting shares of Preferred Stock to the extent it does not receive specific instructions from the holders of Depositary Shares relating to such Preferred Stock. AMENDMENT AND TERMINATION OF THE DEPOSITARY AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may at any time be amended by agreement between the Company and the Depositary. However, any amendment which materially and adversely alters the rights of the existing holders of Depositary Shares will not be effective unless such amendment has been approved by the record holders of at least a majority of the Depositary Shares then outstanding. A Deposit Agreement may be terminated by the Company or the Depositary only if (i) all outstanding Depositary Shares relating thereto have been redeemed, exchanged or converted or (ii) there has been a final distribution in respect of the Preferred Stock of the relevant series in connection with any liquidations, dissolution or winding up of the Company and such distribution has been distributed to the holders of the related Depositary Shares. 18 21 CHARGES OF DEPOSITARY The Company will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company will pay charges of the Depositary in connection with the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Shares will pay other transfer and other taxes and governmental charges and such other charges as are expressly provided in the Deposit Agreement to be for their accounts. MISCELLANEOUS The Depositary will forward to the holders of Depositary Shares all reports and communications from the Company which are delivered to the Depositary and which the Company is required to furnish to the holders of the Preferred Stock. Neither the Depositary nor the Company will be liable if it is prevented or delayed by law or any circumstances beyond its control in performing its obligations under the Deposit Agreement. The obligations of the Company and the Depositary under the Deposit Agreement will be limited to performance in good faith of their duties thereunder and they will not be obligated to prosecute or defend any legal proceeding in respect of any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished. They may rely upon written advice of counsel or accountants, or information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY The Depositary may resign at any time by delivering to the Company notice of its election to do so, and the Company may at any time remove the Depositary, any such resignation or removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment. Such successor Depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50,000,000. DESCRIPTION OF COMMON STOCK COMMON STOCK The Company is authorized to issue 75,000,000 shares of Common Stock. On June 30, 1994, 23,568,630 shares were outstanding and 18,749,020 were reserved for future issuance. All shares of Common Stock have equal rights to participate in dividends and, in the event of liquidation, assets available for distribution to stockholders, subject to any preference established with respect to preferred stock. Each holder of Common Stock is entitled to one vote for each share held on all matters submitted to a vote of stockholders, and voting rights for the election of directors are noncumulative. Shares of Common Stock carry no conversion, preemptive or subscription rights, and are not subject to redemption. All outstanding shares of Common Stock are, and any shares of Common Stock issued upon conversion of convertible securities will be, fully paid and nonassessable. The Company pays dividends on Common Stock when, as and if declared by the Board of Directors. Dividends may be declared in the discretion of the Board of Directors from funds legally available therefore, subject to restrictions under agreements related to Company indebtedness. FACTORS AFFECTING ACQUISITIONS OF CONTROL The Certificate of Incorporation, as amended, provides that the Board of Directors, in its discretion, may establish one or more classes or series of preferred stock having such number of shares, designations, relative voting rights, dividend rates, liquidation and other rights, preferences and limitations as may be fixed by the Board of Directors without any further stockholder approval. Such rights, preferences, privileges and limitations as may be established could have the effect of impeding or discouraging the acquisition of control of the Company. 19 22 The Company is a Delaware corporation and is subject to Section 203 of the Delaware General Corporation Law (the "DGCL"). In general, Section 203 prevents an "interested stockholder" (defined generally as a person owning 15% or more of a corporation's outstanding voting stock) from engaging in a "business combination" (as defined) with a Delaware corporation for three years following the date such person became an interested stockholder unless (i) before such person became an interested stockholder, the board of directors of the corporation approved the transaction in which the interested stockholder became an interested stockholder or approved the business combination; (ii) upon consummation of the transaction that resulted in the interested stockholder's becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding stock held by directors who are also officers of the corporation and by employee stock plans that do not provide employees with the rights to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer); or (iii) following the transaction in which such person became an interested stockholder, the business combination is approved by the board of directors of the corporation and authorized at a meeting of stockholders by the affirmative vote of the holders of two-thirds of the outstanding voting stock of the corporation not owned by the interested stockholder. Under Section 203, the restrictions described above also do not apply to certain business combinations proposed by an interested stockholder following the announcement or notification of one of certain extraordinary transactions involving the corporation and a person who had not been an interested stockholder during the previous three years or who became an interested stockholder with the approval of a majority of the corporation's directors, if such extraordinary transaction is approved or not opposed by a majority of the directors who were directors prior to any person becoming an interested stockholder during the previous three years or who were recommended for election or elected to succeed such directors by a majority of such directors. DIRECTORS' LIABILITY The Certificate of Incorporation, as amended, also provides for the elimination of directors' liability for monetary damages for a breach of certain fiduciary duties and for the indemnification of directors, officers, employees or agents as permitted by the DGCL. These provisions cannot be amended without the affirmative vote of the holders of at least a majority in interest of the outstanding shares entitled to vote. The Company has entered into indemnification agreements with all directors and executive officers and may, in the future, enter into such agreements with employees and agents. Such indemnification agreements provide generally that such persons will be indemnified, to the extent permitted by applicable law, for expenses (including attorneys' fees), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by such persons in connection with any proceeding (including, to the extent permitted by law, any derivative action) to which such persons are, or are threatened to be made, a party by reason of their status in such positions. Such indemnification agreements do not change the basic legal standards for indemnity under applicable law or as set forth in the Certificate of Incorporation. The transfer agent for the Common Stock is Society National Bank, P. O. Box 2320, Dallas, Texas 75221-2320. DESCRIPTION OF WARRANTS The company may issue Warrants for the purchase of Debt Securities, Preferred Stock, Depositary Shares or Common Stock. Warrants may be issued independently or together with Debt Securities, Preferred Stock, Depositary Shares or Common Stock offered by any Prospectus Supplement and may be attached to or separate from such Debt Securities, Preferred Stock, Depositary Shares or Common Stock. Each series of Warrants will be issued under a separate warrant agreement (a "Warrant Agreement") to be entered into between the Company and a bank or trust company, as Warrant agent, all as set forth in the Prospectus Supplement relating to the particular issue of offered Warrants. The Warrant agent will act solely as an agent of the Company in connection with the Warrant certificates relating to the Warrants and will not assume any obligation or relationship of agency or trust for or with any holders of Warrant certificates or beneficial owners of Warrants. Warrant Agreements, including the forms of Warrant certificates representing the Warrants, will be filed as an exhibit to or incorporated by reference in the Registration Statement of which this Prospectus is a part. The following summaries of certain provisions of the forms of Warrant Agreements and 20 23 Warrant certificates do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Warrant Agreements and the Warrant certificates. GENERAL If Warrants are offered, the applicable Prospectus Supplement will describe the terms of such Warrants, including, in the case of Warrants for the purchase of Debt Securities, the following where applicable: (i) the title and aggregate number of such Warrants and the offering price; (ii) the designation, denominations and terms of the series of Debt Securities purchasable upon exercise of such Warrants; (iii) the designation and terms of any series of Debt Securities, Preferred Stock, Depositary Shares or Common Stock with which such Warrants are being offered and the number of such Warrants being offered with each such Debt Security, Preferred Stock, Depositary Share or Common Stock; (iv) the date on and after which such Warrants and the related series of Debt Securities, Preferred Stock, Depositary Shares or Common Stock will be transferable separately; (v) the principal amount of the series of Debt Securities purchasable upon exercise of each such Warrant and the price at which such principal amount of Debt Securities of such series may be purchased upon such exercise; (vi) the date on which the right to exercise such Warrants shall commence and the date (the "Expiration Date") on which such right shall expire; (vii) any special United States Federal income tax consequences; (viii) the terms, if any, on which the Company may accelerate the date by which the Warrants must be exercised; and (ix) any other terms of such Warrants, including terms, procedures and limitations relating to the exchange and exercise of such Warrants. In the case of Warrants for the purchase of Preferred Stock, Depositary Shares or Common Stock, the applicable Prospectus Supplement will describe the terms of such Warrants, including the following where applicable: (i) the title and aggregate number of such Warrants and the offering price; (ii) the aggregate number of shares purchasable upon exercise of such Warrants, the exercise price, and in the case of Warrants for Preferred Stock or Depositary Shares, the designation, aggregate number and terms of the series of Preferred Stock purchasable upon exercise of such Warrants or underlying the Depositary Shares purchasable upon exercise of such Warrants; (iii) the designation and terms of the series of Debt Securities, Preferred Stock, Depositary Shares or Common Stock with which such Warrants are being offered and the number of such Warrants being offered with each such Debt Security, Preferred Stock, Depositary Share or Common Stock; (iv) the date on and after which such Warrants and the related series of Debt Securities, Preferred Stock, Depositary Shares or Common Stock will be transferable separately; (v) the date on which the right to exercise such Warrants shall commence and the Expiration Date; (vi) any special United States Federal income tax consequences; and (vii) any other terms of such Warrants, including terms, procedures and limitations relating to the exchange and exercise of such Warrants. EXERCISE OF WARRANTS Each Warrant will entitle the holder thereof to purchase such principal amount of Debt Securities or number of shares of Preferred Stock, Depositary Shares or Common Stock, as the case may be, at such exercise price as shall in each case be set forth in, or calculable from, the Prospectus Supplement relating to the offered Warrants. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Company), unexercised Warrants will become void. Warrants may be exercised by delivering to the Warrant agent payment as provided in the applicable Prospectus Supplement of the amount required to purchase the Debt Securities, Preferred Stock, Depositary Shares or Common Stock, as the case may be, purchasable upon such exercise together with certain information set forth on the reverse side of the Warrant certificate. Warrants will be deemed to have been exercised upon receipt of payment of the exercise price, subject to the receipt within five business days, of the Warrant certificate evidencing such Warrants. Upon receipt of such payment and the Warrant certificate properly completed and duly executed at the corporate trust office of the Warrant agent or any other office indicated in the applicable Prospectus Supplement, the Company will, as soon as practicable, issue and deliver the Debt Securities, Preferred Stock, Depositary Shares or Common Stock, as the case may be, purchasable upon such exercise. If fewer than all of the Warrants represented by such Warrant certificate are exercised, a new Warrant certificate will be issued for the remaining amount of Warrants. 21 24 AMENDMENTS AND SUPPLEMENTS TO WARRANT AGREEMENTS The Warrant Agreements may be amended or supplemented without the consent of the holders of the Warrants issued thereunder to effect changes that are not inconsistent with the provisions of the Warrants and that do not adversely affect the interest of the holders of the Warrants. COMMON STOCK WARRANT ADJUSTMENTS Unless otherwise indicated in the applicable Prospectus Supplement, the exercise price of, and the number of shares of Common Stock covered by, a Warrant entitling the holder to purchase Common Stock (a "Common Stock Warrant") are subject to adjustment in certain events, including (i) payment of a dividend on the Common Stock payable in capital stock and stock splits, combinations or reclassifications of the Common Stock, (ii) issuance to all holders of Common Stock of rights or warrants to subscribe for or purchase shares of Common Stock at less than their current market price (as defined in the Warrant Agreement for such series of Common Stock Warrants), and (iii) certain distributions of evidences of indebtedness or assets (including securities but excluding cash dividends or distributions paid out of retained earnings or dividends payable in Common Stock) or of subscription rights and warrants (excluding those referred to above). If after the distribution date fixed for purposes of distributing to holders of Common Stock any Stockholder Rights, exercising holders of any Common Stock Warrant are not entitled to receive Stockholder Rights that would otherwise be attributable (but for the date of exercise) to the shares of Common Stock received upon such exercise, then adjustment of the exercise price will be made under clause (iii) of this paragraph as if the Stockholder Rights were being distributed to holder of the Company's Common Stock. If such an adjustment is made and the Stockholder Rights are later redeemed, invalidated or terminated, then a corresponding reversing adjustment will be made to the number of shares of Common Stock issuable upon the exercise of such Common Stock Warrant, on an equitable basis, to take account of such event. However, the Company may elect to make provision with respect to Stockholder Rights so that each share of Common Stock issuable upon exercise of such Common Stock Warrant whether or not issued after the distribution date for such Stockholder Rights, will be accompanied by the Stockholder Rights that would otherwise be attributable (but for the date of exercise) to such shares of Common Stock, in which event the preceding two sentences will not apply. No adjustment in the exercise price of, and the number of shares of Common Stock covered by, a Common Stock Warrant will be made for regular quarterly or other periodic or recurring cash dividends or distributions or for cash dividends or distributions to the extent paid from retained earnings. No adjustment will be required unless such adjustment would require a change of at least 1% in the exercise price than in effect. Except as stated above, the exercise price of, and the number of share of Common Stock covered by, a Common Stock Warrant will not be adjusted for the issuance of Common Stock or any securities convertible into or exchangeable for Common Stock, or carrying the right or option to purchase or otherwise acquire the foregoing, in exchange for cash, other property or services. In the event of any (i) consolidation or merger of the Company with or into any entity (other than a consolidation or a merger that does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock), (ii) sale, transfer, lease or conveyance of all or substantially all of the assets of the Company or (iii) reclassification, capital reorganization or change of the Common Stock (other than solely a change in par value of from par value to no par value), then any holder of a Common Stock Warrant will be entitled, on or after the occurrence of any such event, to receive on exercise of such Common Stock Warrant the kind and amount of shares of stock or other securities, cash or other property (or any combination thereof) that the holder would have received had such holder exercised such holder's Common Stock Warrant immediately prior to the occurrence of such event. If the consideration to be received upon exercise of the Common Stock Warrant following any such event consists of common stock of the surviving entity, then from and after the occurrence of such event, the exercise price of such Common Stock Warrant will be subject to the same antidilution and other adjustments described in the second preceding paragraph, applied as if such common stock were Common Stock. 22 25 GLOBAL SECURITIES REGISTERED GLOBAL SECURITIES The registered Securities (including Registered Debt Securities but excluding Common Stock) of a series may be issued in whole or in part in the form of one or more fully registered global Securities ("Registered Global Securities") that will be deposited with, or on behalf of, a depository (the "Depository") identified in the Prospectus Supplement relating to such series. Registered Global Securities may be issued in either temporary or permanent form. Unless and until it is exchanged in whole or in part for the individual registered Securities represented thereby, a Registered Global Security may not be transferred except as a whole by the Depository for such Registered Global Security to a nominee of such Depository or by a nominee of such Depository to such Depository or another nominee of such Depository or by the Depository or any nominee of such Depository to a successor Depository or any nominee of such successor. The specific terms of the depository arrangement with respect to a series of Securities will be described in the Prospectus Supplement relating to such series. Unless otherwise specified in the Prospectus Supplement, the Company anticipates that the following provisions will apply to depository arrangements. Upon the issuance of a Registered Global Security, the Depository for such Registered Global Security or its nominee will credit on its book-entry registration and transfer system the respective principal amounts of the individual Securities represented by such Registered Global Security to the accounts of persons that have accounts with such Depository ("Participants"). Such accounts shall be designated by the underwriters, dealers or agents with respect to such Securities or by the Company if such Securities are offered and sold directly by the Company. Ownership of beneficial interests in a Registered Global Security will be limited to Participants or persons that may hold interests through Participants. Ownership of beneficial interests in such Registered Global Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depository or its nominee (with respect to interests to Participants) and records of Participants (with respects to interests of persons who hold through Participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to own, pledge or transfer beneficial interests in a Registered Global Security. So long as the Depository for a Registered Global Security or its nominee is the registered owner of such Registered Global Security, such Depository or such nominee, as the case may be, will be considered the sole owner or holder of the Securities represented by such Registered Global Security for all purposes under the Indenture or applicable Warrant Agreement. Except as provided below, owners of beneficial interests in a Registered Global Security will not be entitled to have any of the individual Securities of the series represented by such Registered Global Security registered in their names, will not receive or be entitled to receive physical delivery of any such Securities of such series in definitive form and will not be considered the owners or holders thereof under the Indenture or applicable Warrant Agreement. Accordingly, each person owning a beneficial interest in a Registered Global Security must rely on the procedures of the Depository for such Registered Global Security and, if such a person is not a Participant, on the procedures of the Participant through which such person owns its interest, to exercise any rights of a holder under the Indenture or applicable Warrant Agreement. The Company understands that under existing industry practices, if the Company requests any action of holders or if an owner of a beneficial interest in a Registered Global Security desires to give or take any action which a holder is entitled to give or take under the Indenture or applicable Warrant Agreement, the Depository for such Registered Global Security would authorize the Participants holding the relevant beneficial interests to give or take such action, and such Participants would authorize beneficial owners owning through such Participants to give or take such action or would otherwise act upon the instructions of beneficial owners holding through them. Payments of principal of and any premium or interest on individual Securities represented by a Registered Global Security registered in the name of a Depository or its nominee will be made to the Depository or its nominee, as the case may be, as the registered owner of the Registered Global Security representing such Securities. None of the Company, the Trustee, the Warrant Agent, any paying agent or the registrar for such Securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Registered Global Security for such Securities or for maintaining, supervising or reviewing any records relating to such 23 26 beneficial ownership interests. The Company expects that the Depository for a series of Securities or its nominee, upon receipt of any payment of principal, premium or interest in respect of a permanent Registered Global Security representing any of such Securities, immediately will credit Participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Registered Global Security for such Securities as shown on the records of such Depository or its nominee. The Company also expects that payments by Participants to owners of beneficial interests in such Registered Global Security held through such Participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name." Such payments will be the responsibility of such Participants. If a Depository for a series of Securities is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Company within 90 days, the Company will issue individual Securities of such series in exchange for the Registered Global Security representing such series of Securities. In addition, the Company may, at any time and in its sole discretion, subject to any limitations described in the Prospectus Supplement relating to such series of Securities, determine not to have any Securities of such series represented by one or more Registered Global Securities and, in such event, will issue individual Securities of such series in exchange for the Registered Global Security or Securities representing such series of Securities. Individual Securities of such series so issued will be issued in denominations, unless otherwise specified by the Company, of $1,000 and integral multiples thereof. Any Securities issued in definitive form in exchange for a Registered Global Security will be registered in such name as the Depository shall instruct the Trustee or relevant Warrant Agent. It is expected that such instructions will be based upon directions received by the Depository from Participants with respect to ownership of beneficial interests in such Registered Global Security. BEARER GLOBAL SECURITIES If so specified in an applicable Prospectus Supplement, all or any portion of the Securities of a series which are issuable as Bearer Debt Securities will initially be represented by one or more temporary global Bearer Debt Securities ("Bearer Global Securities"), without interest coupons, to be deposited with a common depositary in London for the Euro-clear System ("Euro-clear") and CEDEL S.A. ("CEDEL") for credit to the designated accounts. On and after the date determined as provided in any such temporary Bearer Global Security and described in an applicable Prospectus Supplement, each such temporary Bearer Global Security will be exchangeable for definitive Bearer Debt Securities, definitive Registered Debt Securities or all or a portion of a permanent Bearer Global Security, or any combination thereof, as specified in an applicable Prospectus Supplement, but, unless otherwise specified in an applicable Prospectus Supplement, only upon written certification in the form and to the effect described under "Description of Debt Securities -- Provisions Applicable to Both Senior and Subordinated Debt Securities -- Form, Exchange, Registration and Transfer." No Bearer Debt Security delivered in exchange for a portion of a temporary Bearer Global Security will be mailed or otherwise delivered to any location in the United States in connection with such exchange. The specific terms and procedures, including the specific terms of the depositary arrangement with respect to any portion of a series of Bearer Debt Securities to be represented by a Bearer Global Security will be described in the applicable Prospectus Supplement. PLAN OF DISTRIBUTION The Company may offer Securities to or through underwriters, through agents or directly to other purchasers. The distribution of Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such market prices or at negotiated prices. In connection with the sale of Securities, underwriters or agents may receive compensation from the Company or from purchasers in the form of discounts, concessions or commissions. Underwriters, agents and dealers participating 24 27 in the distribution of the Securities may be deemed to be underwriters within the meaning of the Securities Act. Pursuant to agreements which may be entered into between the Company and any underwriters or agents named in the Prospectus Supplement, such underwriters or agents may be entitled to indemnification by the Company against certain liabilities, including liabilities under the Securities Act. If so indicated in the Prospectus Supplement, the Company will authorize underwriters or other persons acting as agents for the Company to solicit offers by certain institutional investors to purchase Debt Securities or Preferred Stock from the Company pursuant to contracts providing for payment and delivery on a future date. Institutions with which such contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but shall in all cases be subject to the approval of the Company. The obligations of the purchaser under any such contract will not be subject to any conditions except (i) the investment in the Debt Securities or Preferred Stock by the institution shall not at the time of delivery be prohibited by the laws of any jurisdiction in the United States to which such institution is subject, and (ii) if a portion of the Debt Securities or Preferred Stock is being sold to underwriters, the Company shall have sold to such underwriters the Debt Securities or Preferred Stock not sold for delayed delivery. Underwriters and such other persons will not have any responsibility in respect of the validity or performance of such contracts. All Debt Securities, Preferred Stock and Warrants offered will be a new issue of securities with no established trading market. Any underwriters to whom such Debt Securities, Preferred Stock and Warrants are sold by the Company for public offering and sale may make a market in such Debt Securities, Preferred Stock and Warrants, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of or the trading markets for any Debt Securities, Preferred Stock or Warrants. Certain of the underwriters or agents and their associates may be customers of, engage in transactions with and perform services for the Company in the ordinary course of business. The specific terms and manner of sale of the Securities in respect of which this Prospectus is being delivered are set forth or summarized in the Prospectus Supplement. 25 28 VALIDITY OF SECURITIES The validity of the Securities offered will be passed upon for the Company by Peter E. Lorenzen, Vice President and General Counsel of the Company, and for the underwriters or agents, if any, by a firm named in the Prospectus Supplement relating to a particular issue of Securities. Mr. Lorenzen owns 7,000 shares, and holds options to purchase 67,800 shares, of Common Stock. EXPERTS The audited financial statements and financial statement schedules incorporated in this Prospectus by reference have been audited by Arthur Andersen & Co., independent public accountants, as indicated in their reports with respect thereto, and are incorporated herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports. The information incorporated herein by reference regarding proved reserves and related future net revenues and the present value thereof is derived, as and to the extent described herein and therein, from reserve reports and reserve report audits prepared by Netherland, Sewell & Associates, Inc., independent oil and gas consultants, and, to such extent, are included and incorporated by reference in reliance upon the authority of such firm as experts with respect to the matters contained in such reports and audits. 26 29 PART II INFORMATION NOT REQUIRED IN PROSPECTUS All capitalized terms used and not defined in Part II of this Registration Statement shall have been the meanings assigned to them in the Prospectus which forms a part of this Registration Statement. ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Except for the SEC Registration Fee, the following itemized table sets forth estimates of those expenses payable by the Company in connection with the offer and sale or exchange of the securities offered hereby: SEC Registration Fee $ 86,207 Blue Sky Fees and Expenses (including legal fees) 25,000 Printing and Engraving Expenses 100,000 Legal Fees and Expenses 75,000 Accountants' Fees and Expenses 75,000 Rating Agency Fees 150,000 Trustees' Fees and Expenses 30,000 Miscellaneous Fees and Expenses 15,000 -------- Total $556,207 ========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant is incorporated in Delaware. Under Section 145 of the General Corporation Law of the State of Delaware (the "DGCL"), a Delaware corporation has the power, under specified circumstances, to indemnify its directors, officers, employees and agents in connection with actions, suits or proceedings brought against them by a third party or in the right of the corporation, by reason of the fact that they were or are such directors, officers, employees or agents, against expenses and liabilities incurred in any such action, suit or proceeding so long as they acted in good faith and in a manner that they reasonably believed to be in, or not opposed to, the best interests of such corporation, and with respect to any criminal action, that they had no reasonable cause to believe their conduct was unlawful. With respect to suits by or in the right of such corporation, however, indemnification is generally limited to attorneys' fees and other expenses and is not available if such person is adjudged to be liable to such corporation unless the court determines that indemnification is appropriate. A Delaware corporation also has the power to purchase and maintain insurance for such persons. Article Nine of the Certificate of Incorporation of the Registrant provides for mandatory indemnification of directors and officers to the fullest extent permitted by Section 145 of the DGCL. Reference is made to the Certificate of Incorporation of the Registrant, filed as an Exhibit hereto. The forms of the Underwriting Agreements, which will be filed as Exhibits hereto, will provide that the Underwriters will indemnify the Registrant, its directors and officers and certain other persons against liabilities, including liabilities under the Securities Act of 1933, as amended (the "Securities Act") with respect to information furnished in writing to the Registrant for use in this Registration Statement. The Registrant has entered into indemnification agreements with each of its officers and directors and may in the future enter into such indemnification agreements with its directors, officers, employees and agents. Such indemnification agreements are intended to provide a contractual right to indemnification, to the extent permitted by law, for costs, expenses (including attorneys' fees and disbursements), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by the person to be indemnified in connection with any proceeding (including, to the extent permitted by law, any derivative action) to which they are, or are threatened to be made, a party by reason of their status or decisions or actions in such positions. Such indemnification agreements do not change the basic legal standards for indemnification set forth in DGCL or the certificate of incorporation of the Registrant. Such provisions are intended to be in furtherance, and not in limitation of, the general right to indemnification provided in the certificate of incorporation and Bylaws of the Registrant. II-1 30 Section 102(b)(7) of the DGCL provides that a certificate of incorporation may contain a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director provided that such provision shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 (relating to liability for unauthorized acquisitions or redemptions of, or dividends on, capital stock) of the DGCL or (iv) for any transaction from which the director derived an improper personal benefit. Article Ten of the Registrant's Certificate of Incorporation contains such a provision. The above discussion of the Registrant's Certificate of Incorporation and Sections 102(b)(7) and 145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by such Certificate of Incorporation and statutes. ITEM 16. EXHIBITS. 1.1 -- Form of Underwriting Agreement (for equity securities).* 1.2 -- Form of Underwriting Agreement (for debt securities).* 4.1.1 -- Certificate of Incorporation of Registrant -- incorporated by reference from Exhibit 3.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.1.2 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed February 9, 1990 -- incorporated by reference from Exhibit 3.1.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.1.3 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed May 22, 1991 -- incorporated by reference from Exhibit 3.1.2 to the Registrant's Registration Statement on Form S-1 (Registration No 33-43106). 4.1.4 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed May 24, 1993 -- incorporated by reference from Exhibit 3.1.5 to the Registrant's Form 10-Q for the quarter ended June 30, 1993 (File No. 1-10509). 4.1.5 -- Certificate of Designations, Powers, Preferences and Rights of the Registrant's $4.00 Convertible Exchangeable Preferred Stock -- incorporated by reference from Exhibit 3.1.3 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1991 (File No. 1-10509). 4.1.6 -- Certificate of Designations of the Registrant's $6.00 Convertible Exchangeable Preferred Stock -- incorporated by reference from Exhibit 3.1.4 to the Registrant's Form 10-Q for the quarter ended June 30, 1993 (File No. 1-10509). 4.1.7 -- Indenture (including form of Note) for 7% Convertible Subordinated Notes -- incorporated by reference from Exhibit 4.3 to the Registrant's Registration Statement on Form S-3 (Registration No. 33-52807). 4.1.8 -- Fifth Restated Credit Agreement dated as of June 30, 1994 among Registrant, the Banks listed therein and NationsBank of Texas, N.A. as Agent.** 4.2 -- By-Laws of Registrant -- incorporated by reference from Exhibit 3.2 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.3 -- Form of Indenture, including form of Debenture, with respect to Senior Indebtedness.** 4.4 -- Form of Indenture, including form of Debenture, with respect to Subordinated Indebtedness.** II-2 31 4.5 -- Form of Certificate for Common Stock -- incorporated by reference from Exhibit 4.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.6 -- Form of Warrant Agreement, including form of Warrant Certificate.* 4.7 -- Form of Certificate of Designations for Preferred Shares.* 4.8 -- Form of Certificate for Preferred Stock.* 4.9 -- Form of Deposit Agreement.* 4.10 -- Form of Depositary Receipt.* 5.1 -- Opinion of Peter E. Lorenzen, Vice President -- General Counsel of the Registrant, as to legality of the Securities registered hereby.* 12.1 -- Computation of Ratio of Earnings to Fixed Charges.** 23.1 -- Consent of Peter E. Lorenzen to use of his opinion filed as Exhibit 5.1 (set forth in his opinion filed as Exhibit 5). 23.2 -- Consent of Arthur Andersen & Co.** 23.3 -- Consent of Netherland, Sewell, & Associates, Inc.** 24.1 -- Powers of attorney (set forth on the signature page hereof). 25.1 -- Form T-1 Statements of Eligibility and Qualification of Trustees under Trust Indenture Act of 1939 relating to Senior Indenture and Subordinated Indenture.* 99.1 -- Report of Netherland, Sewell & Associates, Inc. dated February 10, 1994 relating to certain of the Registrant's property interests -- incorporated by reference from Exhibit 99.1 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-10509). 99.2 -- Report of Netherland, Sewell & Associates, Inc. dated February 11, 1994 relating to their audit of reserve estimates -- incorporated by reference from Exhibit 99.2 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-10509). _______________________ * To be filed as an exhibit to Form 8-K in reference to the specific offering of Securities, if any, to which it relates. ** Filed herewith. ITEM 17. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (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 for II-3 32 the in the Registration Statement; (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 (a)(1)(i) and (a)(1)(ii) do not apply if the information to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference in the Registration Statement. (2) that, for the purpose of determining any liability under the Securities Act, 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 post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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. (c) The undersigned Registrant hereby undertakes if securities are to be offered pursuant to competitive bidding (1) to use its best efforts to distribute prior to the opening of bids, to prospective bidders, underwriters and dealers, a reasonable number of copies of a prospectus which at that time meets the requirements of section 10(a) of the Securities Act, and relating to the securities offered at competitive bidding, as contained in this Registration Statement, together with any supplements thereto, and (2) to file an amendment to this Registration Statement reflecting the results of bidding, terms of the reoffering and related matters to the extent required by the applicable form, not later than the first use, authorized by the issuer after the opening of bids, of a prospectus relating to the securities offered at competitive bidding, unless no further public offering of such securities by the issuer and no reoffering of such securities by the purchasers is proposed to be made. (d) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling persons 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 matter 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 and will be governed by the final adjudication of such issue. (e) The undersigned Registrant hereby undertakes to file applications for the purpose of determining the eligibility of the Senior Trustee and the Subordinated 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. II-4 33 SIGNATURES Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all 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 Fort Worth, State of Texas, on July 29, 1994. SNYDER OIL CORPORATION By: /s/ John C. Snyder John C. Snyder, Chairman Pursuant to the requirements of the Securities Act of 1933, the Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and appoints John C. Snyder, Thomas J. Edelman, Rodney L. Waller and Peter E. Lorenzen, and each of them, any one of whom may act without the joinder of the other, as his attorney-in-fact to sign on his behalf individually and in the capacity stated below all amendments and post- effective amendments to this Registration Statement as such attorney-in-fact may deem necessary or appropriate. /s/ John C. Snyder Director and Chairman of the Board - ------------------------------- (Principal Executive Officer of Registrant) July 29, 1994 John C. Snyder /s/ Thomas J. Edelman Director and President - ----------------------------- (Principal Executive Officer of Registrant) July 29, 1994 Thomas J. Edelman /s/ John A. Fanning Director and Executive Vice President July 29, 1994 - ------------------------------- John A. Fanning /s/ Roger W. Brittain Director July 29, 1994 - ------------------------------- Roger W. Brittain /s/ John A. Hill Director July 29, 1994 - -------------------------------- John A. Hill /s/ B. J. Kellenberger Director July 29, 1994 - ------------------------------- B. J. Kellenberger /s/ John H. Lichtblau Director July 29, 1994 - ------------------------------- John H. Lichtblau /s/ James E. McCormick Director July 29, 1994 - ---------------------------- James E. McCormick /s/ Alfred M. Micallef Director July 29, 1994 - ------------------------------- Alfred M. Micallef /s/ James H. Shonsey Vice President and Controller July 29, 1994 - ------------------------------ (Principal Accounting Officer) James H. Shonsey
II-5 34 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________________________ Exhibits to FORM S-3 REGISTRATION STATEMENT Under the SECURITIES ACT OF 1933 ________________________________ SNYDER OIL CORPORATION Volume I ================================================================================ II-6 35 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION ------- ------------------------------------------------------------ 1.1 -- Form of Underwriting Agreement (for equity securities).* 1.2 -- Form of Underwriting Agreement (for debt securities).* 4.1.1 -- Certificate of Incorporation of Registrant -- incorporated by reference from Exhibit 3.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.1.2 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed February 9, 1990 -- incorporated by reference from Exhibit 3.1.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.1.3 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed May 22, 1991 -- incorporated by reference from Exhibit 3.1.2 to the Registrant's Registration Statement on Form S-1 (Registration No 33-43106). 4.1.4 -- Certificate of Amendment to Certificate of Incorporation of Registrant filed May 24, 1993 -- incorporated by reference from Exhibit 3.1.5 to the Registrant's Form 10-Q for the quarter ended June 30, 1993 (File No. 1-10509). 4.1.5 -- Certificate of Designations, Powers, Preferences and Rights of the Registrant's $4.00 Convertible Exchangeable Preferred Stock -- incorporated by reference from Exhibit 3.1.3 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1991 (File No. 1-10509). 4.1.6 -- Certificate of Designations of the Registrant's $6.00 Convertible Exchangeable Preferred Stock -- incorporated by reference from Exhibit 3.1.4 to the Registrant's Form 10-Q for the quarter ended June 30, 1993 (File No. 1-10509). 4.1.7 -- Indenture (including form of Note) for 7% Convertible Subordinated Notes -- incorporated by reference from Exhibit 4.3 to the Registrant's Registration Statement on Form S-3 (Registration No. 33-52807). 4.1.8 -- Fifth Restated Credit Agreement dated as of June 30, 1994 among Registrant, the Banks listed therein and NationsBank of Texas, N.A. as Agent.** 4.2 -- By-Laws of Registrant -- incorporated by reference from Exhibit 3.2 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.3 -- Form of Indenture, including form of Debenture, with respect to Senior Indebtedness.** 4.4 -- Form of Indenture, including form of Debenture, with respect to Subordinated Indebtedness.** 36 EXHIBIT INDEX (Continued) EXHIBIT NUMBER DESCRIPTION ------- ----------------------------------------------------------- 4.5 -- Form of Certificate for Common Stock -- incorporated by reference from Exhibit 4.1 to the Registrant's Registration Statement on Form S-4 (Registration No. 33-33455). 4.6 -- Form of Warrant Agreement, including form of Warrant Certificate.* 4.7 -- Form of Certificate of Designations for Preferred Shares.* 4.8 -- Form of Certificate for Preferred Stock.* 4.9 -- Form of Deposit Agreement.* 4.10 -- Form of Depositary Receipt.* 5.1 -- Opinion of Peter E. Lorenzen, Vice President -- General Counsel of the Registrant, as to legality of the Securities registered hereby.* 12.1 -- Computation of Ratio of Earnings to Fixed Charges.** 23.1 -- Consent of Peter E. Lorenzen to use of his opinion filed as Exhibit 5.1 (set forth in his opinion filed as Exhibit 5). 23.2 -- Consent of Arthur Andersen & Co.** 23.3 -- Consent of Netherland, Sewell, & Associates, Inc.** 24.1 -- Powers of attorney (set forth on the signature page hereof). 25.1 -- Form T-1 Statements of Eligibility and Qualification of Trustees under Trust Indenture Act of 1939 relating to Senior Indenture and Subordinated Indenture.* 99.1 -- Report of Netherland, Sewell & Associates, Inc. dated February 10, 1994 relating to certain of the Registrant's property interests -- incorporated by reference from Exhibit 99.1 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-10509). 99.2 -- Report of Netherland, Sewell & Associates, Inc. dated February 11, 1994 relating to their audit of reserve estimates -- incorporated by reference from Exhibit 99.2 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1993 (File No. 1-10509). _______________________ * To be filed as an exhibit to Form 8-K in reference to the specific offering of Securities, if any, to which it relates. ** Filed herewith. EX-4.1.8 2 FIFTH RESTATED CREDIT AGREEMENT 1 $500,000,000 FIFTH RESTATED CREDIT AGREEMENT dated as of June 30, 1994 among SNYDER OIL CORPORATION The Banks Listed Herein and NATIONSBANK OF TEXAS, N.A. as the Agent 2 ARTICLE I TERMS DEFINED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 ----------- SECTION 1.2. Accounting Terms and Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ----------------------------------- ARTICLE II THE CREDIT FACILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 2.1. Facility A Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ---------------------- SECTION 2.2. Facility B Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 --------------------- SECTION 2.3. Method of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ------------------- 2.3.1. Competitive Bid Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ------------------------- 2.3.2. Method of Committed Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ----------------------------- SECTION 2.4. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 ----- SECTION 2.5. Maturity of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 ----------------- SECTION 2.6. Interest Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 -------------- SECTION 2.7. Application of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 ----------------------- SECTION 2.8. Mandatory Termination of Facility A Commitment; Extension of Facility A Termination Date . . . . . . 42 ---------------------------------------------------------------------------------------- SECTION 2.9. Mandatory Termination of Facility B Commitment; Extension of Facility B Termination Date . . . . . . 43 ---------------------------------------------------------------------------------------- SECTION 2.10. Reduction of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 ------------------------ SECTION 2.11. Commitment Fee for Facility A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ----------------------------- SECTION 2.12. Commitment Fee for Facility B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ----------------------------- SECTION 2.13. Agency Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ---------- SECTION 2.14. Borrowing Base Increase Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 --------------------------- ARTICLE III GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 SECTION 3.1. Delivery and Endorsement of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 --------------------------------- SECTION 3.2. General Provisions as to Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 --------------------------------- SECTION 3.3. Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 -------------- SECTION 3.4. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ----------------------- SECTION 3.5. Overdue Principal and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ------------------------------ ARTICLE IV BORROWING BASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 SECTION 4.1. Reserve, Related Asset and Borrowing Base Report; Proposed Borrowing Base . . . . . . . . . . . . . . 47 ------------------------------------------------------------------------- SECTION 4.2. Determination of Total Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ------------------------------------- SECTION 4.3. Special Determination of Total Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 --------------------------------------------- SECTION 4.4. Allocation of Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 ---------------------------- SECTION 4.5. Over Advance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 ------------ SECTION 4.6. Initial Borrowing Base . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 ----------------------
3 ARTICLE V COLLATERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 SECTION 5.1. Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 -------- SECTION 5.2. Guaranty by Restricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 ----------------------------------- SECTION 5.3. Legal Opinions; Corporate Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 --------------------------------- ARTICLE VI CONDITIONS TO BORROWINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 SECTION 6.1. Conditions to Restatement of Existing Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . 51 ------------------------------------------------------ SECTION 6.2. Conditions to Each Borrowing and Each Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . 53 ------------------------------------------------------ 6.2.1 Conditions Precedent to Each Facility A Committed Borrowing and Letter of Credit . . . . . . . . 53 -------------------------------------------------------------------------------- 6.2.2 Conditions Precedent to Each Committed Borrowing comprised of Facility B Loans . . . . . . . . . 54 ------------------------------------------------------------------------------ 6.2.3 Conditions Precedent to Each Competitive Bid Borrowing Comprised of Facility A Loans . . . . . . 55 ------------------------------------------------------------------------------------ 6.2.4 Conditions Precedent to Each Competitive Bid Borrowing Comprised of Facility B Loans . . . . . . 56 ------------------------------------------------------------------------------------ ARTICLE VII REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 SECTION 7.1. Corporate Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 ----------------------------- SECTION 7.2. Existence and Power (Subsidiaries) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ---------------------------------- SECTION 7.3. Corporate, Partnership and Governmental Authorization; Contravention . . . . . . . . . . . . . . . . 57 -------------------------------------------------------------------- SECTION 7.4. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 -------------- SECTION 7.5. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 --------------------- SECTION 7.6. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ---------- SECTION 7.7. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ----- SECTION 7.8. Taxes and Filing of Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 ------------------------------- SECTION 7.9. Title to Properties; Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 -------------------------- SECTION 7.10. Business; Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 -------------------- SECTION 7.11. Licenses, Permits, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 ---------------------- SECTION 7.12. Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 ------------------- SECTION 7.13. Ownership Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ------------------- SECTION 7.14. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 --------------- SECTION 7.15. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ------------ SECTION 7.16. Obligations of Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ---------------------------------------- SECTION 7.17. Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 --------------------- ARTICLE VIII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 8.1. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 ----------- SECTION 8.2. Business of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 -------------------- SECTION 8.3. Maintenance of Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 ------------------------ SECTION 8.4. Additional Title Data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 ---------------------
4 SECTION 8.5. Right of Inspection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ------------------- SECTION 8.6. Maintenance of Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ------------------------ SECTION 8.7. Maintenance of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ----------------------- SECTION 8.8. Payment of Taxes and Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 --------------------------- SECTION 8.9. Compliance with Laws and Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 ---------------------------------- SECTION 8.10. Operation of Properties and Equipment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 ------------------------------------- SECTION 8.11. Additional Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 -------------------- SECTION 8.12. Environmental Law Compliance and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 ------------------------------------------ SECTION 8.13. Mortgage Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 ------------------- ARTICLE IX NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 SECTION 9.1. Total Additional Debt of Borrower, Restricted Subsidiaries and DJ Partners, L.P. . . . . . . . . . . 69 -------------------------------------------------------------------------------- SECTION 9.2. Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 ------------------- SECTION 9.3. Negative Pledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 --------------- SECTION 9.4. Consolidations and Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 -------------------------- SECTION 9.5. Asset Dispositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 ------------------ SECTION 9.6. Amendments to Material Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 -------------------------------- SECTION 9.7. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 --------------- SECTION 9.8. Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 ----------- SECTION 9.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 ---------------------------- SECTION 9.10. Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 ----- SECTION 9.11. Hedge Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 ------------------ SECTION 9.12. Obligations of Unrestricted Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 ---------------------------------------- ARTICLE X FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 SECTION 10.1. Consolidated Working Capital of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 ---------------------------------------- SECTION 10.2. Current Ratio of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 ------------------------- SECTION 10.3. Ratio of Consolidated Total Debt and Consolidated Senior Debt to Consolidated Tangible --------------------------------------------------------------------------------------- Net Worth of Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 --------------------- SECTION 10.4. Adjusted Consolidated Cash Flow Coverage of Borrower . . . . . . . . . . . . . . . . . . . . . . . 73 ---------------------------------------------------- ARTICLE XI DEFAULTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 SECTION 11.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 ----------------- ARTICLE XII THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 SECTION 12.1. Appointment and Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 ----------------------------- SECTION 12.2. The Agent and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 ------------------------ SECTION 12.3. Action by the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 ------------------- SECTION 12.4. Consultation with Experts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 ------------------------- SECTION 12.5. Liability of the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 ----------------------
5 SECTION 12.6. Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 -------------------- SECTION 12.7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 --------------- SECTION 12.8. Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 --------------- SECTION 12.9. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 --------------- ARTICLE XIII PROTECTION OF YIELD; CHANGE IN LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 SECTION 13.1. Basis for Determining Interest Rate Applicable to CD Rate Loans and Eurodollar Loans Inadequate . 79 ------------------------------------------------------------------------------------------------ SECTION 13.2. Illegality of CD Rate Loans or Eurodollar Loans . . . . . . . . . . . . . . . . . . . . . . . . . . 79 ----------------------------------------------- SECTION 13.3. Increased Cost of CD Rate Loans or Eurodollar Loans . . . . . . . . . . . . . . . . . . . . . . . . 80 --------------------------------------------------- SECTION 13.4. Alternative Committed Loans Substituted for Affected Eurodollar Loans or CD Rate Loans . . . . . . 81 -------------------------------------------------------------------------------------- SECTION 13.5. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 ---------------- SECTION 13.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 ----- SECTION 13.7. Discretion of Banks as to Manner of Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 ------------------------------------------- ARTICLE XIV MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 SECTION 14.1. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 ------- SECTION 14.2. No Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 ---------- SECTION 14.3. Expenses; Documentary Taxes; Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 84 ---------------------------------------------- SECTION 14.4. Right and Sharing of Set-Offs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 ----------------------------- SECTION 14.5. Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 ---------------------- SECTION 14.6. Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 -------- SECTION 14.7. Limitation on Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 ---------------------- SECTION 14.8. Invalid Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 ------------------ SECTION 14.9. Waiver of Consumer Credit Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 ------------------------------ SECTION 14.10. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 ---------------------- SECTION 14.11. TEXAS LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 --------- SECTION 14.12. Consent to Jurisdiction; Waiver of Immunities . . . . . . . . . . . . . . . . . . . . . . . . . . 87 --------------------------------------------- SECTION 14.13. Counterparts; Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 --------------------------- SECTION 14.14. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 ---------------------------- SECTION 14.15. COMPLETE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 ------------------ SECTION 14.16. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 -------------------- Exhibit A CERTIFICATE OF EFFECTIVENESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 --------- Exhibit B-1 FORM OF COMPETITIVE BID REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 ----------- Exhibit B-2 FORM OF NOTICE TO BANKS OF COMPETITIVE BID REQUEST . . . . . . . . . . . . . . . . . . . . . . . . . 96 ----------- Exhibit B-3 FORM OF COMPETITIVE BID . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 ----------- Exhibit B-4 REQUEST FOR COMMITTED LOANS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 ----------- Exhibit C-1 COMMITTED FACILITY A NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 ----------- Exhibit C-2 COMPETITIVE BID FACILITY A NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 ----------- Exhibit D-1 COMMITTED FACILITY B NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108 ----------- Exhibit D-2 COMPETITIVE BID FACILITY B NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 -----------
6 Exhibit E CERTIFICATE OF OWNERSHIP INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 --------- SCHEDULE 1 SUBSIDIARIES OF SNYDER OIL CORPORATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 ----------
7 THIS AGREEMENT (herein so called) is entered into as of the 30th day of June, 1994, among SNYDER OIL CORPORATION ("Borrower"), the BANKS listed on the signature pages hereto and NATIONSBANK OF TEXAS, N.A., as the Agent. W I T N E S S E T H WHEREAS, pursuant to an Assignment of Rights and Obligations to be dated as of July 5, 1994 (the "Assignment"), Texas Commerce Bank National Association will purchase and assume certain rights and interests of NationsBank of Texas, N.A., Wells Fargo Bank, N.A. and Bank One Texas, N.A. under that certain Fourth Restated Credit Agreement dated July 1, 1993, as heretofore amended (the "Existing Credit Agreement"); and WHEREAS, after giving effect to such Assignment, the Commitment Percentage of each Bank (including TCB) in Facility A and Facility B under the Existing Credit Agreement will correspond to the Facility A and Facility B Commitment Percentages of each Bank under this Agreement; and WHEREAS, immediately after giving effect to the Assignment, but subject to the conditions precedent set forth herein, Borrower, the Banks, and the Agent desire to amend and restate the Existing Credit Agreement in its entirety in order, among other things, (a) to increase from $300,000,000 to $500,000,000 the aggregate Commitments of the Banks, and (b) to modify certain other provisions of the Existing Credit Agreement. NOW, THEREFORE, in consideration of the premises, the representations, warranties, covenants and agreements contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower, Agent and Banks agree that upon satisfaction of each condition precedent set forth in Section 6.1 hereof and delivery of the Certificate of Effectiveness therein contemplated, the Existing Credit Agreement shall be amended and restated in its entirety on the terms and conditions set forth herein. It is the intention of Agent, Borrower and Banks that upon satisfaction of such conditions precedent and delivery of such Certificate of Effectiveness, this Agreement shall amend, restate, supersede and replace the Existing Credit Agreement in its entirety; provided, that (a) the foregoing shall operate to renew, increase, extend, amend and modify the outstanding indebtedness, commitments and other rights and obligations of the parties under the Existing Credit Agreement, but shall not effect a novation thereof, and (b) all Liens securing the Obligations under and as defined in the Existing Credit Agreement shall not be extinguished, but shall be carried forward and shall secure such Obligations as defined herein and as renewed, extended, increased, amended and modified hereby. FIFTH RESTATED CREDIT AGREEMENT PAGE 1 8 ARTICLE I TERMS DEFINED SECTION 1.1. Definitions. The following terms, as used herein, have the following meanings: "Adjusted CD Rate" applicable to any Interest Period, means a rate per annum equal to (a) the quotient obtained (rounded upwards if necessary to the next higher 1/16 of 1%) by dividing (i) the applicable CD Rate by (ii) 1.00 minus the CD Reserve Percentage plus (b) the Assessment Rate. "Adjusted Consolidated Cash Flow" means, with respect to Borrower for any time period, Consolidated Cash Flow of Borrower for such time period, adjusted, however, to reflect all revenues and expenses (including lease operating expense, severance taxes, additional overhead and other expenses) attributable to material oil and gas properties purchased by Borrower or any of its Subsidiaries after the first day of such period as if such properties had been owned by Borrower or such Subsidiary on the first day of such period. As used in this definition "material oil and gas properties" means oil and gas properties purchased for a purchase price of not less than $25,000,000. "Adjusted Consolidated Senior Debt" means Consolidated Senior Debt excluding, however, the principal balance of any Debt outstanding under Facility B. "Adjusted London Interbank Offered Rate" applicable to any Interest Period, means a rate per annum equal to the quotient obtained (rounded upwards, if necessary to the next higher 1/16 of 1%) by dividing (a) the applicable London Interbank Offered Rate by (b) 1.00 minus the Eurodollar Reserve Percentage. "Agent" means NationsBank of Texas, N.A. in its capacity as agent for the Banks hereunder or any successor thereto. "Applicable Environmental Law" means any law, statute, ordinance, rule, regulation, order or determination of any governmental authority or any board of fire underwriters (or other body exercising similar functions), affecting any real or personal property owned, operated or leased by Borrower or any Subsidiary of Borrower or any other operation of Borrower or any Subsidiary of Borrower in any way pertaining to health, safety or the environment, including, without limitation, all applicable zoning ordinances and building codes, flood disaster laws and health, safety and environmental laws and regulations, and further including without limitation, (a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986 (as amended from time to time, herein referred to as "CERCLA"), (b) the Resource Conservation and Recovery Act of 1976, as amended by the Used Oil Recycling Act of 1980, the Solid Waste Recovery Act of 1976, as amended by the FIFTH RESTATED CREDIT AGREEMENT PAGE 2 9 Solid Waste Disposal Act of 1980, and the Hazardous and Solid Waste Amendments of 1984 (as amended from time to time herein referred to as "RCRA"), (c) the Safe Drinking Water Act, as amended, (d) the Toxic Substances Control Act, as amended, (e) the Clean Air Act, as amended, (f) the Occupational Safety and Health Act of 1970, as amended (g) the laws, rules and regulations of any state having jurisdiction over any real or personal property owned, operated or leased by Borrower or any Subsidiary of Borrower or any other operation of Borrower or any Subsidiary of Borrower which relate to health, safety or the environment, as each may be amended from time to time, and (h) any federal, state or municipal laws, ordinances or regulations which may now or hereafter require removal of asbestos or other hazardous wastes or impose any liability related to asbestos or other hazardous wastes. The terms "hazardous substance", "petroleum", "release" and "threatened release" have the meanings specified in CERCLA, and the terms "solid waste" and "disposal" (or "disposed") have the meanings specified in RCRA; provided, however, in the event either CERCLA or RCRA is amended so as to broaden the meaning of any term defined thereby, such broader meaning shall apply subsequent to the effective date of such amendment with respect to all provisions of this Agreement; and provided further that, to the extent the laws of the state in which any real or personal property owned, operated or leased by Borrower or any of its Subsidiaries is located establish a meaning for "hazardous substance", "petroleum", "release", "solid waste" or "disposal" which is broader than that specified in either CERCLA or RCRA, such broader meaning shall apply. "Applicable Margin" means, for purposes of determining the interest rate applicable to outstanding Committed Loans during any fiscal quarter of Borrower, an amount determined pursuant to clauses (a) and (b) below by reference to Borrower's ratio of Consolidated Senior Debt to Consolidated Tangible Net Worth as of the end of the most recent fiscal quarter for which Borrower has provided Banks the financial statements required by Section 8.1(b) (in the case of the first three quarters of Borrower's fiscal year) or 8.1(a) (in the case of the fourth quarter of Borrower's fiscal year): (a) if, as of the commencement of any fiscal quarter of Borrower, Borrower's ratio of Consolidated Senior Debt to Consolidated Tangible Net Worth as of the end of the most recent fiscal quarter for which Borrower has provided to Banks the financial statements required by Section 8.1(a) (in the case of the last quarter of Borrower's fiscal year) or Section 8.1(b) (in the case of the first three quarters of Borrower's fiscal year), was greater than .8 to 1.0, the Applicable Margin in effect for such quarter shall be (i) one percent (1%) in the case of Eurodollar and CD Rate Loans, and (ii) zero in the case of Base Rate Loans; and (b) if, as of the commencement of any fiscal quarter of Borrower, Borrower's ratio of Consolidated Senior Debt to Consolidated Tangible Net Worth as of the end of the most recent fiscal quarter for which Borrower has provided to Banks the financial statements required by Section 8.1(a) (in the case of the last quarter of Borrower's fiscal year) or Section 8.1(b) (in the case of the first FIFTH RESTATED CREDIT AGREEMENT PAGE 3 10 three quarters of Borrower's fiscal year), was less than or equal to .8 to 1.0, the Applicable Margin in effect for such quarter shall be (i) three fourths of one percent (3/4%) in the case of Eurodollar and CD Rate Loans, and (ii) zero in the case of Base Rate Loans. "Approved Petroleum Engineer" means any one or more of Netherland Sewell & Associates, Ryder Scott Company, Williamson Petroleum Consultants, Inc., Barnes and Click, Inc., or such other reputable firm(s) of independent petroleum engineers as shall be approved by the Required Banks and, as to oil and gas properties aggregating not more than twenty percent (20%) of the total value of all Borrower's and the Restricted Subsidiaries' oil and gas properties (based on the Recognized Value) Borrower's in-house staff shall be deemed an Approved Petroleum Engineer. "Assessment Rate" means, with respect to CD Rate Loans, the net annual assessment rate, as determined by the Agent (expressed as a percentage rounded to the next higher 1/16 of 1%), which is in effect on such day under the regulations of the Federal Deposit Insurance Corporation (or any successor) for insuring time deposits made in dollars at the Agent's headquarters office. If such net assessment rate changes after the date hereof, the Assessment Rate shall be automatically increased or decreased correspondingly, from time to time as of the effective time of each change in such net assessment rate. "Authorized Officer" means, as to any Person, its Chairman, Vice-Chairman, President, Executive Vice President(s), Senior Vice President(s) or Vice President duly authorized to act on behalf of such Person. "Bank" means any bank listed on the signature page hereof as having a Commitment and its successors and assigns, and "Banks" shall mean all of the Banks. "Bank Redemption Notice" means any notice required to be given by Borrower to the Banks pursuant to the definitions of "Qualified Redemption of First Issue", "Qualified Redemption of Second Issue" and "Qualified Redemption of Third Convertible Debentures." "Base Rate" means the floating rate of interest established from time to time by the Agent as its "prime rate" of interest, which rate might not be the lowest rate of interest which it charges, each change in the Base Rate to become effective without notice to Borrower on the effective date of each such change. "Base Rate Loan" means a Committed Loan bearing interest with reference to the Base Rate. "Borrower" means Snyder Oil Corporation, a Delaware corporation. "Borrowing" means a Competitive Bid Borrowing or a Committed Borrowing. FIFTH RESTATED CREDIT AGREEMENT PAGE 4 11 "Borrowing Base Deficiency" means, as of any date, the amount, if any, by which (a) Borrower's Adjusted Consolidated Senior Debt outstanding on such date exceeds the Facility A Borrowing Base in effect on such date, or (b) the principal balance of all Facility B Loans outstanding on such date exceeds the Facility B Borrowing Base in effect on such date; it is understood and agreed that an Over Advance is also a Borrowing Base Deficiency. "Borrowing Base Report" means the report required to be delivered to the Banks pursuant to Sections 4.1 and 4.3 which shall (a) set forth the aggregate amount of all obligations of Borrower to the holders of the Subordinated Notes, the Convertible Debentures and the Preferred Stock coming due within the twelve (12) month period following the next succeeding Determination Date, including, without limitation, (i) dividends anticipated to be paid during such period whether or not declared, and (ii) the full amount of any redemption, sinking fund or mandatory prepayment obligation anticipated to come due during such period with respect to the Convertible Debentures or the Preferred Stock (whether or not a Bank Redemption Notice or Redemption Notice has been delivered), and (b) include a copy of the Reserve Report and the Related Asset Report upon which the Total Borrowing Base is to be determined. "Borrowing Date" means the Eurodollar Business Day or the Domestic Business Day, as the case may be, upon which the proceeds of any Borrowing are made available to Borrower. "Cash Secured Third Party Letters of Credits" shall mean Third Party Letters of Credit which are secured by cash, deposit accounts or certificates of deposit. "CD Rate" applicable to any Interest Period means the rate per annum determined by the Agent (in accordance with its customary general practices) to be the arithmetic average (rounded upwards, to the next higher 1/16 of 1%) of the prevailing bid rates per annum offered to the Agent at approximately 10:00 a.m. (Dallas, Texas time) one (1) Domestic Business Day before the first day of the applicable Interest Period by three (3) or more certificate of deposit dealers of recognized standing for the purchase in the secondary market at face value of a domestic certificate of deposit of the Agent in an amount approximately equal to the amount of the CD Rate Loan and for a period approximately equal to the length of the applicable Interest Period. The Agent shall determine the CD Rate and shall notify Borrower and the Banks of such determination as soon as practicable. The Agent's determination of the CD Rate shall in each case be, in the absence of manifest error, conclusive and binding. "CD Rate Loan" means a Committed Loan with respect to which Borrower shall have selected an interest rate based on the Adjusted CD Rate pursuant to the provisions of Article II. Each Committed Borrowing comprised of CD Rate Loan(s) having a different Interest Period shall be deemed to be a separate CD Rate Borrowing. FIFTH RESTATED CREDIT AGREEMENT PAGE 5 12 "CD Reserve Percentage" means on any day, that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in Dallas, Texas (including, without limitation, basic supplemental, marginal and emergency reserves) in respect of any time deposits in dollars in Dallas, Texas time having a maturity approximately equal to that of the Interest Period. "Closing Price" for each trading day with respect to Common Stock shall be the reported last sales price regular way or, in case no reported sales take place on such day, the average of the reported closing bid and asked prices regular way, in either case, on the New York Stock Exchange or, if the Common Stock is not listed or admitted to trading on such Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading (based on the aggregate dollar value of all securities listed or admitted to trading) or, if not listed or admitted to trading on any national securities exchange, on the NASDAQ National Market System or, if the Common Stock is not listed or admitted to trading on any national securities exchange or quoted on the NASDAQ National Market System, the average of the closing bid and asked prices in the over-the-counter market as furnished by any New York Stock Exchange member firm selected from time to time by the Corporation for that purpose, or, if such prices are not available, the fair market value set by, or in a manner established by, the Board of Directors of Borrower in good faith and approved by Majority Banks. "Trading day" shall mean a day on which the national securities exchange or the NASDAQ National Market System used to determine the Closing Price is open for the transaction of business or the reporting of trades, or, if the closing price is not so determined, a day on which the New York Stock Exchange is open for the transaction of business. "Code" shall mean the Internal Revenue Code of 1986, as amended. "Commitment" means, with respect to each Bank, the sum of such Bank's Facility A Commitment and Facility B Commitment. "Committed Borrowing" means (i) with respect to Facility A Loans, a borrowing consisting of simultaneous Committed Facility A Loans of a single type of interest rate and having the same Interest Period from each of the Banks distributed ratably among the Banks in the manner described in Section 2.1(a), and (ii) with respect to Facility B Loans, a borrowing consisting of simultaneous Committed Facility B Loans of a single type of interest rate and having the same Interest Period from each of the Banks distributed ratably among the Banks in the manner described in Section 2.2(a). "Committed Facility A Loan" means a Facility A Loan from a Bank to Borrower pursuant toSection 2.3.2, which shall be a Base Rate Loan, a Eurodollar Loan or a CD Rate Loan. FIFTH RESTATED CREDIT AGREEMENT PAGE 6 13 "Committed Facility A Note" means a promissory note of Borrower payable to the order of a Bank, in substantially the form of Exhibit C-1 hereto, evidencing the aggregate indebtedness of Borrower to such Bank resulting from Committed Facility A Loans made by such Bank to Borrower, together with all modifications, extensions, renewals and rearrangements thereof; and "Committed Facility A Notes" means all Committed Facility A Notes. "Committed Facility B Loan" means a Facility B Loan by a Bank to Borrower pursuant toSection 2.3.2, which shall be a Base Rate Loan, a Eurodollar Loan or a CD Rate Loan. "Committed Facility B Note" means a promissory note of Borrower payable to the order of a Bank, in substantially the form of Exhibit D-1 hereto, evidencing the aggregate indebtedness of Borrower to such Bank resulting from Committed Facility B Loans made by such Bank to Borrower, together with all modifications, extensions, renewals and rearrangements thereof; and "Committed Facility B Notes" means all Committed Facility B Notes. "Committed Loan" means a Committed Facility A Loan or a Committed Facility B Loan. "Common Stock" means Borrower's Common Stock, par value $.01 per share. "Competitive Bid" means a Facility A Competitive Bid or a Facility B Competitive Bid, as the case may be. "Competitive Bid Borrowing" means a borrowing hereunder consisting of a single Competitive Bid Loan from a Bank or simultaneous Competitive Bid Loans from each Bank whose Competitive Bid, as all or as part of such Competitive Bid Borrowing, has been accepted by Borrower under the bidding procedure described in Section 2.3.1. "Competitive Bid Facility A Loan" means a Facility A Loan from a Bank to Borrower pursuant to the bidding procedure described in Section 2.3.1, which shall be either a Eurodollar Loan or a Fixed Rate Loan. "Competitive Bid Facility A Note" means a promissory note of Borrower payable to the order of a Bank, in substantially the form of Exhibit C-2 hereto, evidencing the aggregate indebtedness of Borrower to such Bank resulting from the Competitive Bid Facility A Loans made by such Bank to Borrower, together with all modifications, extensions, renewals and rearrangements thereof; and "Competitive Bid Facility A Notes" means all Competitive Bid Facility A Notes. FIFTH RESTATED CREDIT AGREEMENT PAGE 7 14 "Competitive Bid Facility B Loan" means a Facility B Loan from a Bank to Borrower pursuant to the bidding procedure described in Section 2.3.1, which shall be either a Eurodollar Loan or a Fixed Rate Loan. "Competitive Bid Facility B Note" means a promissory note of Borrower payable to the order of a Bank, in substantially the form of Exhibit D-2 hereto, evidencing the aggregate indebtedness of Borrower to such Bank resulting from the Competitive Bid Facility B Loans made by such Bank to Borrower, together with all modifications, extensions, renewals and rearrangements thereof; and "Competitive Bid Facility B Notes" means all Competitive Bid Facility B Notes. "Competitive Bid Loan" means a Competitive Bid Facility A Loan or a Competitive Bid Facility B Loan. "Competitive Bid Margin" means as to any Competitive Bid relating to a Eurodollar Loan, the margin (expressed as a percentage per annum in the form of a decimal to no more than four decimal places) to be added to the Adjusted London Interbank Offered Rate in order to determine the interest rate acceptable to such Bank with respect to such Eurodollar Loan. "Competitive Bid Rate" means, as to any Competitive Bid made by a Bank pursuant to Section 2.3.1, (a) in the case of a Eurodollar Loan, (i) the Competitive Bid Margin, plus (ii) the Adjusted London Interbank Offered Rate, and (b) in the case of a Fixed Rate Loan, the fixed rate of interest, in each case offered by the Bank making such Competitive Bid. "Competitive Bid Request" means a request for Competitive Bids to be made pursuant toSection 2.3.1 in the form of Exhibit B-1. "Consolidated Cash Flow" means, with respect to Borrower for a time period, consolidated net income of Borrower for such time period as set forth in the financial statements delivered pursuant to Section 8.1 (a) exclusive of net gain or loss (after provision for Taxes) on the sale of assets, other than inventory sold in the ordinary course of business, during such time period, (b) exclusive of income attributable to Exempt Subsidiaries except to the extent of dividends actually received by Borrower or a Restricted Subsidiary from such Exempt Subsidiaries during such Period, (c) plus or minus, as appropriate, changes in deferred Taxes with respect to such time period, and (d) plus depreciation, depletion, amortization of principal and other non-cash charges for such time period. "Consolidated Current Assets" means, for any Person at any time, the sum of (a) consolidated current assets of such Person and its Consolidated Subsidiaries including accounts or notes receivable (if properly reserved in accordance with generally accepted accounting principles), but excluding (i) prepaid expenses, and (ii) assets held for resale, plus (b) in the case of Borrower, the sum of the Unused Facility A Availability and the Unused Facility B Availability at such time. FIFTH RESTATED CREDIT AGREEMENT PAGE 8 15 "Consolidated Current Liabilities" means, for any Person at any time the current liabilities of such Person and its Consolidated Subsidiaries at such time but excluding, in the case of Borrower, required principal payments under Facility A and Facility B. "Consolidated Liabilities" means, for any Person at any time, the liabilities of such Person and its Consolidated Subsidiaries at such time, but in any event including any Debt or Guarantee of such Person or any Consolidated Subsidiaries. "Consolidated Senior Debt" means, for Borrower at any time, (a) the consolidated Debt of Borrower and its Consolidated Subsidiaries at such time, plus (b) the Consolidated Current Liabilities of Borrower and its Consolidated Subsidiaries at such time in excess of the Consolidated Current Assets of Borrower and its Consolidated Subsidiaries at such time, minus, to the extent included in (a) or (b) preceding, (c) (i) the principal balance of the Convertible Debentures at such time, (ii) other Debt of Borrower and its Consolidated Subsidiaries at such time which by its terms is expressly subordinate to the Obligations (provided that the terms of subordination of such debt shall have been approved in writing by Required Banks prior to the incurrence of such debt), and (iii) Nonrecourse Debt of Borrower and its Consolidated Subsidiaries at such time. "Consolidated Subsidiary" or "Consolidated Subsidiaries" means, for any Person, at any time, any Subsidiary or other entity the accounts of which would be consolidated with those of such Person in its consolidated financial statements as of such time. "Consolidated Tangible Net Worth" means, with respect to Borrower at any time, the consolidated shareholder's equity of Borrower at such time less the consolidated Intangible Assets of Borrower at such time. For purposes of this definition "Intangible Assets" means the amount (to the extent reflected in determining such consolidated shareholder's equity) of all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, organization expenses and other intangible items. "Consolidated Total Covered Debt" means, with respect to Borrower at any time, (a) the consolidated Debt of Borrower and its Consolidated Subsidiaries at such time, plus (b) Consolidated Current Liabilities of Borrower and its Consolidated Subsidiaries in excess of Consolidated Current Assets of Borrower and its Consolidated Subsidiaries at such time. "Conversion Price" means (a) in the case of the First Preferred Stock, the "conversion price" in effect at the time in question as such term is defined in the First Preferred Stock Designation or, if the First Preferred Stock has been exchanged for the First Convertible Debentures, as such term is defined in the First Indenture, (b) in the case of the Second Preferred Stock, the "conversion price" in effect at the time in question as such term is defined in the Second Preferred Stock Designation or, if the Second Preferred Stock has been exchanged for the Second Convertible Debentures, as such term is defined in the FIFTH RESTATED CREDIT AGREEMENT PAGE 9 16 Second Indenture and (c) in the case of the Third Convertible Debentures, the "conversion price" in effect at the time in question as such term is defined in the Third Indenture. "Convertible Debentures" means the First Convertible Debentures, the Second Convertible Debentures and the Third Convertible Debentures, collectively. "Debt" of any Person means, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all other indebtedness (including capitalized lease obligations, other than usual and customary oil and gas leases) of such Person on which interest charges are customarily paid or accrued, (d) all Guarantees by such Person, (e) the unfunded or unreimbursed portion of all letters of credit issued for the account of such Person, and (f) all liability of such Person as a general partner of a partnership for obligations of such partnership of the nature described in (a) through (e) preceding. "Debt" shall not include (i) economic interests which are to be received by third parties in the future after recovery of a fixed amount of hydrocarbons and accompanying elements or the proceeds therefrom so long as such economic interests are properly deducted from the calculation of reserves contained in the Reserve Report, (ii) obligations under the WYGAP Lease, or (iii) obligations under Guarantees of Debt and other obligations of Unrestricted Subsidiaries which are permitted pursuant to Section 9.2, including to the extent permitted under Section 9.2, obligations under the OPIC Guaranty. "Default" means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default. "Delmar" means Delmar Operating, Inc. a Delaware corporation which will become a Subsidiary of Borrower upon completion of the Delmar Acquisition. "Delmar Acquisition" means the acquisition by Borrower of more than fifty percent (50%) of the outstanding capital stock (on a fully diluted basis) of Delmar Petroleum, Inc., a Delaware corporation, which holds one hundred percent (100%) of the issued and outstanding capital stock of Delmar. "Delmar Plan" means the Delmar Operating, Inc. Pension Plan, a Plan maintained by Delmar. "Determination" means any Periodic or Special Determination. "Determination Date" means (a) each May 1 and November 1, (b) with respect to any Special Determination other than a Special Determination required in connection with a Qualified Redemption, the first day of the first month which is not less than twenty (20) Domestic Business Days following the date of a request for a Special Determination, and (c) with respect to any Special Determination required in connection with a Qualified FIFTH RESTATED CREDIT AGREEMENT PAGE 10 17 Redemption, any Business Day identified by Agent (and approved by Required Banks) as the Determination Date; provided, that such Determination Date shall be not later than twenty (20) days following the date of receipt by Banks of the applicable Bank Redemption Notice. "Distribution" by any Person, shall mean (a) with respect to any stock issued by such Person or any partnership interest of such Person, the retirement, redemption, purchase, or other acquisition for value of any such stock or partnership interest, (b) the declaration or payment of any dividend or other distribution on or with respect to any stock or any partnership interest of any Person, and (c) any other payment by such Person with respect to such stock or partnership interest. "DJ Partners, L.P." means DJ Partners, L.P., a Colorado limited partnership. "DJ Project Model" means the Project Model as such term is defined in the Partnership Agreement. "Domestic Business Day" means any day except a Saturday, Sunday or other day on which national banks in Dallas, Texas, are authorized by law to close. "Domestic Lending Office" means, as to each Bank, its office located at its address set forth on the signature pages hereof (or identified on the signature pages hereof as its Domestic Lending Office) or such other office as such Bank may hereafter designate as its Domestic Lending Office by notice to Borrower and the Agent. "Effective Date" means July 5, 1994. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. "Eurodollar Business Day" means any Domestic Business Day on which commercial banks are open for international business (including dealings in dollar deposits) in London. "Eurodollar Lending Office" means, as to each Bank, its office, branch or affiliate located at its address set forth on the signature pages hereof (or identified on the signature pages hereof as its Eurodollar Lending Office) or such other office, branch or affiliate of such Bank as it may hereafter designate as its Eurodollar Lending Office by notice to Borrower and the Agent. "Eurodollar Loan" means a Loan with respect to which Borrower shall have selected an interest rate based on the Adjusted London Interbank Offered Rate in accordance with the provisions of Article II. Each Borrowing comprised of Eurodollar Loan(s) having a different Interest Period shall be deemed to be a separate Eurodollar Borrowing. FIFTH RESTATED CREDIT AGREEMENT PAGE 11 18 "Eurodollar Reserve Percentage" means for any day that percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement for a member bank of the Federal Reserve System in Dallas, Texas in respect of "Eurocurrency liabilities" (or in respect of any other category of liabilities which includes deposits by reference to which the interest rate on Eurodollar Loans is determined or any category of extensions of credit or other assets which includes loans by a non-United States office of any Bank to United States residents). The Adjusted London Interbank Offered Rate shall be adjusted automatically on and as of the effective date of any change in the Eurodollar Reserve Percentage. "Events of Default" has the meaning set forth in Section 11.1. "Exempt Subsidiary" means any Subsidiary of Borrower which (a) is an Unrestricted Subsidiary, (b) is not wholly owned by Borrower, or (c) which the Required Banks have, by written instrument, exempted from the operation of Section 10.4. "Exempt Transfer" means any transfer of oil and gas properties or Related Assets by Borrower, any Restricted Subsidiary or DJ Partners, L.P. (a) to Borrower or any other Restricted Subsidiary, (b) which is a Restricted Payment permitted pursuant to Section 9.2 hereof, or (c) which is a Permitted Investment. "Exhibit" refers to an exhibit attached to this Agreement and incorporated herein by reference, unless specifically provided otherwise. "Existing Credit Agreement" means that certain Fourth Restated Credit Agreement dated July 1, 1993, by and among Borrower, the Agent and the Banks listed on the signature pages thereto, as amended through the date hereof. "Facility A" means the credit facility provided by the Banks to Borrower pursuant to Section 2.1 hereof. "Facility A Availability" means, at any time, the Facility A Borrowing Base in effect at such time, minus Borrower's Consolidated Senior Debt at such time other than Debt outstanding under this Agreement. "Facility A Borrowing" means a Committed Borrowing or a Competitive Bid Borrowing made under Facility A. "Facility A Borrowing Base" means that portion of the Total Borrowing Base allocated to Facility A pursuant to Section 4.4 or 4.6 hereof. "Facility A Commitment" means, with respect to any Bank, the commitment of such Bank to make Loans to Borrower under Facility A up to the amount set forth opposite such FIFTH RESTATED CREDIT AGREEMENT PAGE 12 19 Bank's name on the signature pages to this Agreement as such amount may be terminated or reduced from time to time in accordance with the provisions hereof. "Facility A Commitment Percentage" means, with respect to any Bank at any time, the percentage determined by dividing its Facility A Commitment at such time by the Total Facility A Commitment at such time. "Facility A Competitive Bid" means an offer by a Bank to make a Competitive Bid Facility A Loan pursuant to Section 2.3.1. "Facility A Credit Period" means the period commencing on the date hereof and ending on the Facility A Termination Date. "Facility A Loans" means Loans which are outstanding under Facility A. "Facility A Note" means a Competitive Bid Facility A Note or a Committed Facility A Note and "Facility A Notes" means all Competitive Bid Facility A Notes and all Committed Facility A Notes. "Facility A Outstandings" means, at any time, the sum of (i) the aggregate Letter of Credit Exposure at such time, plus (ii) the aggregate outstanding principal balance of all Facility A Loans at such time. "Facility A Over Advance" has the meaning set forth inSection 4.5. "Facility A Sharing Percentage" means, with respect to any Bank at any time, the percentage determined by dividing (a) the sum of (i) such Bank's aggregate Letter of Credit Exposure at such time, plus (ii) the outstanding principal balance of all Facility A Loans held by such Bank at such time, by (b) the Facility A Outstandings at such time. "Facility A Termination Date" means December 31, 1998; provided that the Facility A Termination Date may be extended by Banks from time to time in their sole discretion pursuant to Section 2.8 hereof. "Facility B" means the credit facility provided by the Banks to Borrower pursuant to Section 2.2 hereof. "Facility B Borrowing" means a Committed Borrowing or a Competitive Bid Borrowing made under Facility B. "Facility B Borrowing Base" means that portion of the Total Borrowing Base allocated to Facility B pursuant to Section 4.4 or 4.6 hereof. FIFTH RESTATED CREDIT AGREEMENT PAGE 13 20 "Facility B Commitment" means, with respect to any Bank, the commitment of such Bank to make Loans to Borrower under Facility B up to the amount set forth opposite such Bank's name on the signature pages to this Agreement as such amount may be terminated or reduced from time to time in accordance with the provisions hereof. "Facility B Commitment Percentage" means, with respect to any Bank at any time, the percentage determined by dividing its Facility B Commitment at such time by the Total Facility B Commitment at such time. "Facility B Competitive Bid" means an offer by a Bank to make a Competitive Bid Facility B Loan pursuant toSection 2.3.1. "Facility B Credit Period" means the period commencing on the date hereof and ending on the Facility B Termination Date. "Facility B Loans" means Loans which are outstanding under Facility B. "Facility B Note" means a Committed Facility B Note or a Competitive Bid Facility B Note and "Facility B Notes" means all Committed Facility B Notes and all Competitive Bid Facility B Notes. "Facility B Over Advance" has the meaning set forth inSection 4.5. "Facility B Sharing Percentage" means, with respect to any Bank at any time, the percentage determined by dividing (a) the sum of all Facility B Loans held by such Bank at such time, by (b) all outstanding Facility B Loans at such time. "Facility B Termination Date" means March 30, 1995; provided that the Facility B Termination Date may be extended by Banks from time to time in their sole discretion pursuant to Section 2.9 hereof. "First Convertible Debentures" means Borrower's 8% Convertible Subordinated Debentures due 2006 which may be issued in exchange for the First Preferred Stock at the option of Borrower. "First Indenture" means an Indenture to be entered into by and between Borrower and the First Indenture Trustee setting forth the terms of the First Convertible Debentures which shall be in the form of the draft of such Indenture included as an Exhibit to the First Registration Statement. "First Indenture Trustee" means Ameritrust Company of New York and any successor trustee appointed pursuant to the First Indenture. FIFTH RESTATED CREDIT AGREEMENT PAGE 14 21 "First Preferred Stock" means Borrower's $4.00 Convertible Preferred Stock containing the rights and preferences set forth in, and issued pursuant to, the First Preferred Stock Designation. "First Preferred Stock Designation" means the Certificate of Designations of Convertible Exchangeable Preferred Stock filed with the Secretary of State of Delaware on November 20, 1991, setting forth the terms of the First Preferred Stock. "First Registration Statement" means the Registration Statement on Form S-1 (No. 33-43106) under the Securities Act which registered the offering and sale of the First Preferred Stock and which became effective on November 20, 1991. "Fixed Rate Loan" means any Competitive Bid Loan made by a Bank pursuant toSection 2.3.1 based on the actual percentage rate per annum offered by such Bank, expressed as a decimal (to no more than four decimal places) and accepted by Borrower. "Fully Funded" means, with respect to any Bank at the time in question, that such Bank is prohibited from (as applicable) (a) making any further Facility A Loans pursuant to the third sentence of Section 2.1(a), or (b) making any further Facility B Loans pursuant to the third sentence of Section 2.2(a). "Guarantee" by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions, by "comfort letter" or other similar undertaking of support or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. "Hedge Transactions" means transactions pursuant to which Borrower or its Subsidiaries hedge the price to be received by them for future production of hydrocarbons, including price swap agreements under which Borrower or its Subsidiaries agree to pay a price for a specified amount of hydrocarbons determined by reference to a recognized market on a specified future date and the contracting party agrees to pay Borrower or its Subsidiaries a fixed price for the same or similar amount of hydrocarbons. "Intercompany Loan" means a revolving loan in the maximum principal amount of $25,000,000, evidenced by that certain promissory note dated October 1, 1992, executed by DJ Partners, L.P. and payable to Borrower. FIFTH RESTATED CREDIT AGREEMENT PAGE 15 22 "Intercompany Loan Documents" means (a) that certain promissory note dated October 1, 1992, in the original principal amount of $25,000,000 executed by DJ Partners, L.P. and payable to Borrower; (b) that certain Assumption and Credit Agreement dated October 1, 1992, by and among Borrower, SWAT and DJ Partners, L.P.; and (c) all other documents, instruments and agreements which evidence, secure or otherwise pertain to the Intercompany Loan. "Intercompany Obligation" means any obligation held by Borrower or any Restricted Subsidiary with respect to which the obligor is Borrower, any Restricted Subsidiary or DJ Partners, L.P., whether evidenced by a promissory note or other instrument, by open account or otherwise. "Interest Period" means: (a) with respect to each Borrowing comprised of Eurodollar Loans, the period commencing on the date of such Borrowing and ending one (1), two (2), three (3) six (6), and, if available to the Banks, nine (9) or twelve (12) months thereafter, as Borrower may elect in the applicable Request for Committed Loans or the applicable Competitive Bid Request, as the case may be; provided that: (i) any Interest Period which would otherwise end on a day which is not a Eurodollar Business Day shall be extended to the next succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Eurodollar Business Day; (ii) any Interest Period which begins on the last Eurodollar Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clause (iii) below, end on the last Eurodollar Business Day of a calendar month; (iii) if any Interest Period includes a date on which any payment of principal of such Loans is required to be made hereunder, but does not end on such date, then (A) the principal amount of each Eurodollar Loan required to be repaid on such date shall have an Interest Period ending on such date, and (B) the remainder of each such Eurodollar Loan shall have an Interest Period determined as set forth above; and (iv) No Interest Period with respect to Facility A Loans shall extend past the expiration of the Facility A Credit Period. No Interest Period with respect to Facility B Loans shall extend past the Facility B Credit Period. (b) with respect to each Committed Borrowing comprised of CD Rate Loans, the period commencing on the date of such Borrowing and ending thirty (30), sixty (60), ninety (90) or one hundred eighty (180), and, if available to the Banks, two hundred seventy (270) FIFTH RESTATED CREDIT AGREEMENT PAGE 16 23 or three hundred sixty (360) days thereafter, as Borrower may elect in the applicable Request for Committed Loans; provided that: (i) any Interest Period which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day unless such Domestic Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Domestic Business Day; (ii) if any Interest Period includes a date on which any payment of principal of such Loans is required to be made hereunder, but does not end on such date, then (A) the principal amount of each CD Rate Loan required to be repaid on such date shall have an Interest Period ending on such date, and (B) the remainder of each such CD Rate Loan shall have an Interest Period determined as set forth above; and (iii) No Interest Period with respect to Facility A Loans shall extend past the expiration of the Facility A Credit Period. No Interest Period with respect to Facility B Loans shall extend past the Facility B Credit Period. (c) with respect to each Committed Borrowing comprised of Base Rate Loans, the period commencing on the date of such Committed Borrowing and ending on the earliest of the next March 31, June 30, September 30 or December 31; provided that: (i) any Interest Period (other than an Interest Period determined pursuant to clause (ii)(A) below) which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day; (ii) if any Interest Period includes a date on which any payment of principal of the Loans is required to be made hereunder, but does not end on such date, then (A) the principal amount of each Base Rate Loan required to be repaid on such date shall have an Interest Period ending on such date, and (B) any remainder of each such Base Rate Loan shall have an Interest Period determined as set forth above; and (iii) No Interest Period with respect to Facility A Loans shall extend past the expiration of the Facility A Credit Period. No Interest Period with respect to Facility B Loans shall extend past the Facility B Credit Period. (d) with respect to each Competitive Bid Borrowing comprised of Fixed Rate Loan(s), the period commencing on the date of such Fixed Rate Loan and ending on the date specified in the Competitive Bid in which the offer to make the Fixed Rate Loan was FIFTH RESTATED CREDIT AGREEMENT PAGE 17 24 extended; provided, however, that each such period shall have a duration of not less than seven (7) calendar days nor more than 360 calendar days; and provided, further, that: (i) any Interest Period (other than an Interest Period determined pursuant to clause (ii)(A) below) which would otherwise end on a day which is not a Domestic Business Day shall be extended to the next succeeding Domestic Business Day; (ii) if any Interest Period includes a date on which any payment of principal of the Loans is required to be made hereunder, but does not end on such date, then (A) the principal amount of each Fixed Rate Loan required to be repaid on such date shall have an Interest Period ending on such date, and (B) any remainder of each such Fixed Rate Loan shall have an Interest Period determined as set forth above; and (iii) No Interest Period with respect to Facility A Loans shall extend past the expiration of the Facility A Credit Period. No Interest Period with respect to Facility B Loans shall extend past the Facility B Credit Period. "Investment" means, with respect to any Person, any loan, advance, extension of credit, capital contribution to, investment in or purchase of the stock securities of, or interests in, any other Person; provided, that "Investment" shall not include current customer and trade accounts which are payable in accordance with customary trade terms. "Issuer" has the meaning set forth inSection 2.1(b). "Lending Office" means as to any Bank its Domestic Lending Office or its Eurodollar Lending Office, as the context may require. "Letters of Credit" means letters of credit issued for the account of Borrower or any Restricted Subsidiary pursuant to Section 2.1(b). "Letter of Credit Exposure" of any Bank means such Bank's aggregate participation in the unfunded portion of Letters of Credit outstanding at any time. "Lien" means with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, Borrower and its Subsidiaries shall be deemed to own subject to a Lien any asset which is acquired or held subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset. "Loan" means a Committed Loan, a Competitive Bid Loan, a Base Rate Loan, a Eurodollar Loan, a Fixed Rate Loan or a CD Rate Loan and "Loans" means Committed FIFTH RESTATED CREDIT AGREEMENT PAGE 18 25 Loans, Competitive Bid Loans, Base Rate Loans, Eurodollar Loans, Fixed Rate Loans, CD Rate Loans or any combination thereof. "Loan Papers" means this Agreement, the Notes, the Mortgages, the Restricted Subsidiary Guarantees and all other certificates, documents or instruments delivered in connection with this Agreement, as the foregoing may be amended from time to time. "London Interbank Offered Rate" applicable to any Interest Period means the rate per annum determined by the Agent (rounded upward, if necessary, to the next higher 1/16 of 1%) at which deposits in dollars are offered to the Agent by first class banks in the London interbank market at approximately 11:00 a.m. (London time) two (2) Eurodollar Business Days before the first day of such Interest Period in an amount approximately equal to the principal amount of the Eurodollar Loan to which such Interest Period is to apply and for a period of time comparable to such Interest Period. The Agent shall determine the London Interbank Offered Rate and shall notify Borrower and the Banks as soon as practicable. "Majority Banks" means (a) at any time prior to the occurrence of an Event of Default, Banks holding greater than fifty percent (50%) of the Total Commitment, and (b) at any time after the occurrence and during the continuation of an Event of Default, Banks holding greater than fifty percent (50%) of the aggregate unpaid principal amount of the Loans, or if no Loans are outstanding, Banks holding greater than fifty percent (50%) of the Total Commitment. "Management Agreement" means that certain Management Agreement dated October 1, 1992, by and between Borrower and DJ Partners, L.P. "Margin Regulations" mean Regulations G, T, U and X of the Board of Governors of the Federal Reserve System, as in effect from time to time. "Margin Stock" means "margin stock" as defined in Regulation U. "Material Agreement" means any material written or oral agreement, contract, commitment, or understanding to which a Person is a party, by which such Person is directly or indirectly bound, or to which any assets of such Person may be subject, which is not cancelable by such Person upon notice of ninety (90) days or less without liability for further payment other than nominal penalty. "Material Debt" means Debt of Borrower or any of its Subsidiaries issued under one or more related or unrelated agreements or instruments in an aggregate principal amount exceeding $5,000,000. "Maximum Lawful Rate" means, for each Bank, the maximum rate (or, if the context so permits or requires, an amount calculated at such rate) of interest which, at the time in FIFTH RESTATED CREDIT AGREEMENT PAGE 19 26 question would not cause the interest charged on the portion of the Loans owed to such Bank at such time to exceed the maximum amount which such Bank would be allowed to contract for, charge, take, reserve, or receive under applicable law after taking into account, to the extent required by applicable law, any and all relevant payments or charges under the Loan Papers. To the extent the laws of the State of Texas are applicable for purposes of determining the "Maximum Lawful Rate," such term shall mean the "indicated rate ceiling" from time to time in effect under Article 1.04, Title 79, Revised Civil Statutes of Texas, 1925, as amended, or, if permitted by applicable law and effective upon the giving of the notices required by such Article 1.04 (or effective upon any other date otherwise specified by applicable law), the "quarterly ceiling" or "annualized ceiling" from time to time in effect under such Article 1.04, whichever the Agent (with the approval of the Required Banks) shall elect to substitute for the "indicated rate ceiling," and vice versa, each such substitution to have the effect provided in such Article 1.04, and the Agent (with the approval of Required Banks) shall be entitled to make such election from time to time and one or more times and, without notice to Borrower, to leave any such substitute rate in effect for subsequent periods in accordance with subsection (h)(1) of such Article 1.04. "Minimum Outstanding Balance" has the meaning set forth inSection 2.1(a). "Mortgages" means all mortgages, deeds of trust and security agreements creating, evidencing, perfecting or otherwise establishing the Liens required by Section 5.1 hereof as may have been heretofore or may hereafter be granted to the Agent to secure repayment of the Loans. "Nonrecourse Debt" means indebtedness (a) secured solely by the assets acquired with the proceeds of such indebtedness, (b) with respect to which neither Borrower nor any of its Subsidiaries have any liability for repayment beyond the assets pledged, and (c) with respect to which Borrower has delivered to the Banks an opinion in a form satisfactory to the Required Banks of counsel acceptable to the Agent stating that such indebtedness meets the criteria set forth in (a) and (b) preceding. "Note" means any Facility A Note or a Facility B Note and "Notes" means all Facility A Notes and all Facility B Notes collectively. "Obligations" means all present and future indebtedness, obligations and liabilities, and all renewals and extensions thereof, or any part thereof, of Borrower or any of its Subsidiaries to any Bank arising pursuant to the Loan Papers, and all interest accrued thereon and costs, expenses, and attorneys' fees incurred in the enforcement or collection thereof, regardless of whether such indebtedness, obligations and liabilities are direct, indirect, fixed, contingent, liquidated, unliquidated, joint, several or joint and several. "OPIC" means the Overseas Private Investment Corporation. FIFTH RESTATED CREDIT AGREEMENT PAGE 20 27 "OPIC Guaranty" means a Guarantee contemplated to be issued by Borrower in favor of OPIC pursuant to which Borrower will guarantee payment and performance of SOCO Perm's obligations under the SOCO Perm Guaranty. "Other Borrowing Base Property" means property owned by Borrower or any Restricted Subsidiary (a) other than oil and gas properties and Related Assets, (b) which Borrower has requested that Banks consider in their determination of the Total Borrowing Base, and (c) which any Bank, in its sole discretion, has considered for purposes of determining the Total Borrowing Base (as evidenced by a notice to such effect delivered by any Bank or Agent to Borrower). "Over Advance" means either a Facility A Over Advance or a Facility B Over Advance. "Over Advance Cure Period" means the period commencing on the Determination Date on which an Over Advance occurs or increases and continuing until the ninetieth (90th) day following such Determination Date. "Over Funded Facility A Bank" means any Bank which holds Committed Facility A Loans and Letter of Credit Exposure which, when considered in the aggregate, exceed its Facility A Commitment Percentage of the sum of (a) all Committed Facility A Loans, and (b) the aggregate Letter of Credit Exposure of all Banks. "Over Funded Facility B Bank" means any Bank which holds Committed Facility B Loans which exceed its Facility B Commitment Percentage of all Committed Facility B Loans. "Partnership Agreement" means that certain Limited Partnership Agreement of DJ Partners, L.P. dated October 1, 1992, by and between SWAT, as general partner, and State Street Bank and Trust Company, as limited partner. "PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA. "Periodic Determination" means any determination of the Total Borrowing Base pursuant to Section 4.2. "PERMTEX" means PERMTEX, a Russian limited liability company. "Permitted Encumbrances" means with respect to any asset: (a) Liens securing the Notes in favor of the Banks; FIFTH RESTATED CREDIT AGREEMENT PAGE 21 28 (b) Minor defects in title which do not secure the payment of money and otherwise have no material adverse effect on the value or operation of oil and gas properties, and for the purposes of this Agreement, a minor defect in title shall include (i) those instances where record title to an oil and gas lease is in a predecessor in title to Borrower or any of its Subsidiaries, but where Borrower or any of its Subsidiaries, by reason of a farmout or other instrument is presently entitled to receive an assignment of its interest or other evidence of title and the appropriate Person is proceeding diligently to obtain such assignment, and (ii) easements, rights-of-way, servitudes, permits, surface leases and other similar rights in respect of surface operations, and easements for pipelines, streets, alleys, highways, telephone lines, power lines, railways and other easements and rights-of-way, on, over or in respect of any of the properties of Borrower (or its Subsidiaries, as applicable) that are customarily granted in the oil and gas industry; so long as, with respect to any of such minor defects in title, the same are minor defects which are customary and usual in the oil and gas industry and which are customarily accepted by a reasonably prudent operator dealing with its properties; (c) Inchoate statutory or operators' liens securing obligations for labor, services, materials and supplies furnished to oil and gas properties which are not delinquent (except to the extent permitted by Section 8.8); (d) Mechanic's, materialmen's, warehouseman's, journeyman's and carrier's liens and other similar liens arising by operation of law or statute in the ordinary course of business which are not delinquent (except to the extent permitted by Section 8.8); (e) Production sales contracts, gas balancing agreements and joint operating agreements; provided, that the amount of all gas imbalances known to any Authorized Officer of Borrower and the amount of all production which has been paid for but not delivered shall have been disclosed or otherwise taken into account in the Reserve Reports delivered to Banks hereunder. (f) Liens for Taxes or assessments not yet due or not yet delinquent, or, if delinquent, that are being contested in good faith in the normal course of business by appropriate action, as permitted by Section 8.8; (g) All rights to consent by, required notices to, filings with, or other actions by, governmental entities in connection with the sale or conveyance of oil and gas leases or interests therein if Borrower (or its Subsidiaries, as applicable) is entitled to such consent, the same are customarily obtained subsequent to such sale or conveyance and the appropriate Person is proceeding diligently to obtain such consent, notice or filing; (h) The terms and provisions of any of the oil and gas leases pursuant to which Borrower (or its Subsidiaries, as applicable) derives its interests; FIFTH RESTATED CREDIT AGREEMENT PAGE 22 29 (i) Lease burdens payable to third parties which are deducted in the calculation of discounted present value in the Reserve Reports including, without limitation, any royalty, overriding royalty, net profits interest, production payment, carried interest or reversionary working interest and which have been disclosed to the Agent in writing; provided, however, that Borrower shall not be required to disclose such lease burdens unless the same are lease burdens which are not customarily and usually found in the oil and gas industry or unless the same are lease burdens which obligate Borrower and/or its Subsidiaries, as applicable, in a fashion not customarily and usually found in the oil and gas industry; (j) All applicable laws, rules and orders of governmental authorities having jurisdiction of the affairs of Borrower; (k) the WYGAP Lease; (l) Liens securing Debt incurred to finance the acquisition of the assets which are the subject of such Liens (to the extent permitted by Section 9.1 hereof); and (m) Security interests covering cash, deposit accounts or certificates of deposit securing Cash Secured Third Party Letters of Credit or Borrower's or its Subsidiaries Obligations under Hedge Transactions permitted by Section 9.11. "Permitted Investment" means, with respect to Borrower or any Restricted Subsidiary (a) Investments in Borrower and other Restricted Subsidiaries, (b) advances by Borrower pursuant to the Intercompany Loan, (c) Investments in Unrestricted Subsidiaries permitted pursuant to Sections 9.2 and 9.8 hereof, (d) Investments (in addition to those referred to in subsections (a), (b), (c), (e) and (f) of this definition) measured at cost on a cumulative basis from and after the date of this Agreement not exceeding, at any time, the greater of (i) five percent (5%) of Borrower's Consolidated Tangible Net Worth at such time, or (ii) five percent (5%) of the Total Borrowing Base at such time, (e) other Investments (in addition to those contemplated by subsections (a), (b), (c), (d) and (f) of this definition); provided, that such other Investments referred to in this subsection (e) shall be considered Restricted Payments pursuant to the definition of Restricted Payments, and (f) contributions made prior to the date of this Agreement by Borrower and SWAT to DJ Partners, L.P. of oil and gas properties located in Weld County, Colorado (as to the Codell and Niobrara formation only), Cheyenne County, Nebraska (as to the Niobrara Formation only), and Fremont and Carbon Counties, Wyoming, which have been mortgaged to Agent for the benefit of the Banks as required by Section 5.1 hereof. "Person" means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof. FIFTH RESTATED CREDIT AGREEMENT PAGE 23 30 "Plan" means at any time an employee pension benefit plan which is now or was previously covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code. "Preferred Stock" means the First Preferred Stock and the Second Preferred Stock collectively. "Process Agent" has the meaning set forth in Section 14.12. "Qualified Redemption of First Issue" means a redemption by Borrower of the First Preferred Stock or First Convertible Debentures pursuant to Section 6 of the First Preferred Stock Designation or Article 11 of the First Indenture (as applicable) which meets each of the following qualifications: (a) Borrower shall have given the Banks a Bank Redemption Notice not less than twenty (20) nor more than sixty (60) days prior to delivery of a Redemption Notice to the holders of First Preferred Stock or First Convertible Debentures (as applicable); (b) Borrower shall not (and shall not permit the First Indenture Trustee to) deliver the Redemption Notice more than thirty (30) days prior to the date fixed for redemption; (c) such redemption shall not be effective prior to January 1, 1995; (d) if such redemption occurs prior to January 1, 1996, the Closing Price of Borrower's Common Stock for twenty (20) trading days during the period of thirty (30) successive trading days ending within five (5) days of the date of delivery of the Redemption Notice shall be at least one hundred fifty percent (150%) of the Conversion Price; and (e) the Closing Price of Borrower's Common Stock on each trading day in the period commencing thirty (30) days prior to date of delivery of the Redemption Notice through the fifth (5th) Domestic Business Day prior to the date fixed for Redemption shall be at least one hundred twenty percent (120%) of the Conversion Price. "Qualified Redemption of Second Issue" means a redemption by Borrower of the Second Preferred Stock or Second Convertible Debentures pursuant to Section 6 of the Second Preferred Stock Designation or Article 11 of the Second Indenture (as applicable) which meets each of the following qualifications: (a) Borrower shall have given the Banks a Bank Redemption Notice not less than twenty (20) nor more than sixty (60) days prior to delivery of a Redemption Notice to the holders of Second Preferred Stock or Second Convertible Debentures (as applicable); (b) Borrower shall not (and shall not permit the Second Indenture Trustee to) deliver the Redemption Notice more than thirty (30) days prior to the date fixed for redemption; (c) such redemption shall not be effective prior to March 31, 1996; and (d) the Closing Price of Borrower's Common Stock on each trading day in the period commencing thirty (30) days prior to date of delivery of the Redemption Notice through the fifth (5th) Domestic Business Day prior to the date fixed for Redemption shall be at least one hundred twenty percent (120%) of the Conversion Price. "Qualified Redemption of Third Convertible Debentures" means a redemption by Borrower of the Third Convertible Debentures pursuant to Article XI of the Third Indenture which meets each of the following qualifications: (a) Borrower shall have given FIFTH RESTATED CREDIT AGREEMENT PAGE 24 31 the Banks a Bank Redemption Notice not less than twenty (20) days nor more than sixty (60) days prior to the delivery of a Redemption Notice to the holders of the Third Convertible Debentures; (b) Borrower shall not (and shall not permit the Third Indenture Trustee to) deliver the Redemption Notice more than thirty (30) days prior to the date fixed for redemption; (c) such redemption shall not be effective prior to March 31, 1997; and (d) the Closing Price of Borrower's Common Stock on each trading day in the period commencing thirty (30) days prior to the date fixed for redemption shall be at least one hundred twenty percent (120%) of the Conversion Price. "Recognized Value" means, with respect to oil and gas properties, the pre-tax value of such properties determined in accordance with Financial Accounting Standards Board Statement 69, generally known as the "standardized measure of discounted cash flow". "Redemption Notice" means a notice by Borrower (or the First Indenture Trustee, the Second Indenture Trustee or the Third Indenture Trustee) to the holders of First Preferred Stock, Second Preferred Stock, First Convertible Debentures, Second Convertible Debentures or Third Convertible Debentures, as applicable, pursuant to which Borrower (or the First Indenture Trustee, the Second Indenture Trustee or the Third Indenture Trustee) calls any such securities for redemption. "Regulation U" means Regulation U of the Board of Governors of the Federal Reserve System, as in effect from time to time. "Related Assets" means all pipelines, gathering systems, gas processing plants and similar assets owned by Borrower, the Restricted Subsidiaries or DJ Partners, L.P., including, related personal property and other fixed assets and all easements, servitudes and similar real property interests owned by Borrower, the Restricted Subsidiaries or DJ Partners, L.P. on which such systems are located. "Related Asset Report" means a report to be delivered by Borrower to Banks simultaneous with each delivery by Borrower of a Reserve Report and Borrowing Base Report pursuant to Sections 4.1 and 4.3 which shall (a) be in form and substance acceptable to Required Banks, (b) be prepared by the Approved Petroleum Engineer (with the exception of the Related Asset Report required to be delivered on or before August 15 of each year or pursuant to any Special Determination which may be prepared by Borrower's in-house staff) in accordance with customary and prudent practices of the petroleum engineering industry, and (c) which shall set forth the discounted present value of the Related Assets (which valuation shall be determined as of the same date as the discounted present value of the oil and gas properties which are the subject of the Reserve Report delivered simultaneous therewith pursuant to Sections 4.1 and 4.3 as applicable) as determined by the Approved Petroleum Engineer or Borrower's in-house staff (as applicable). Each Related Asset Report shall also designate the owner (either Borrower, one of the Restricted Subsidiaries or DJ Partners, L.P.) of each Related Asset which is the subject of such report. FIFTH RESTATED CREDIT AGREEMENT PAGE 25 32 "Request for Committed Loan(s)" has the meaning set forth in Section 2.3.2(a). "Required Banks" means (a) at any time prior to the occurrence of an Event of Default, Banks holding greater than sixty-six and two-thirds percent (66 2/3%) of the Total Commitment, and (b) at any time after the occurrence and during the continuation of an Event of Default, Banks holding at least sixty-six and two-thirds percent (66 2/3%) of the then aggregate unpaid principal amount of the Loans or, if no Loans are at the time outstanding hereunder, Banks having at least sixty-six and two-thirds percent (66 2/3%) of the aggregate amount of the Total Commitment. "Reserve Report" means an engineering analysis of the oil and gas properties owned by Borrower, its Restricted Subsidiaries and DJ Partners, L.P. in form and substance acceptable to the Required Banks prepared by the Approved Petroleum Engineer or reviewed and approved by the Approved Petroleum Engineer (with the exception of the Reserve Reports required to be delivered on or before September 15 of each year pursuant to Section 4.1 or pursuant to any Special Determination pursuant to Section 4.3 which may be prepared by Borrower's in-house staff) in accordance with customary and prudent practices in the petroleum engineering industry and Financial Accounting Standards Board Statement 69. Each Reserve Report shall also designate the owner (either Borrower, one of its Restricted Subsidiaries or DJ Partners, L.P.) which is the owner of each asset which is the subject of such Reserve Report. "Restricted Payment" means (a) any Distribution by Borrower or any Distribution by DJ Partners, L.P., (b) any capital contribution, loan or advance by Borrower or any Restricted Subsidiary to any Unrestricted Subsidiary of Borrower or to DJ Partners, L.P., (c) the issuance of a Guarantee by Borrower or any Restricted Subsidiary with respect to any Debt or other obligation of any Unrestricted Subsidiary, (d) the retirement, redemption or prepayment prior to the scheduled maturity by Borrower or a Restricted Subsidiary of Debt of Borrower or such Restricted Subsidiary which is subordinate to the Obligations, including without limitation, the Subordinate Notes and the Convertible Debentures (and, in the case of the Third Convertible Debentures, any payment of the Change of Control Purchase Price (as defined in the Third Indenture)), and (e) any Investment by Borrower which is a Permitted Investment pursuant to subsection (e) of the definition of Permitted Investment. Notwithstanding the foregoing, "Restricted Payments" shall not include (y) advances made under the Intercompany Loan or (z) contributions made prior to the date of this Agreement by Borrower and SWAT to DJ Partners, L.P. of oil and gas properties located in Weld County, Colorado (as to the Codell and Niobrara formation only), Cheyenne County, Nebraska (as to the Niobrara formation only) and Fremont and Carbon Counties, Wyoming, which have been mortgaged to Agent for the benefit of Banks as required by Section 5.1 hereof. For purposes of this definition, at the time Borrower or any Restricted Subsidiary issues any Guarantee of any Debt or other obligation of any Unrestricted Subsidiary, Borrower or such Restricted Subsidiary will be deemed to have made a Restricted Payment in an amount equal to the maximum potential liability of Borrower or such Restricted Subsidiary under such Guarantee (not to exceed, however, the FIFTH RESTATED CREDIT AGREEMENT PAGE 26 33 aggregate outstanding Debt (including accrued but unpaid interest and fees) and other obligations which are guaranteed pursuant to any such Guarantee). "Restricted Subsidiary" means, initially, the Subsidiaries of Borrower listed on Schedule 1 attached hereto other than SOCO International, Inc., and Thomasville Energy Corporation and the Subsidiaries of SOCO International, Inc. and Thomasville Energy Corporation. "Restricted Subsidiary" shall also refer to any other Subsidiary of Borrower which Required Banks and Borrower have, in their sole discretion, designated in writing a Restricted Subsidiary. "Restricted Subsidiary Guarantees" means the Guarantees of the Obligations by the Restricted Subsidiaries contemplated by Section 5.2 hereof. "Schedule" means a "schedule" attached to this Agreement and incorporated herein by reference, unless specifically indicated otherwise. "Second Convertible Debentures" means Borrower's Convertible Subordinated Debentures due 2008 which may be issued in exchange for the Second Preferred Stock at the option of Borrower. "Second Indenture" means an Indenture entered into by and between Borrower and the Second Indenture Trustee setting forth the terms of the Second Convertible Debentures which is in the form of the draft of such Indenture included as an Exhibit to the Second Registration Statement. "Second Indenture Trustee" means Ameritrust Texas National Association and any successor trustee appointed pursuant to the Second Indenture. "Second Preferred Stock" means a class of Convertible Exchangeable Preferred Stock, par value .01 per share, issued by Borrower having the terms set forth in the Second Preferred Stock Designation. "Second Preferred Stock Designation" means the Certificate of Designations of Convertible Exchangeable Preferred Stock of Borrower filed with the Secretary of State of Delaware on April 14, 1993, setting forth the terms of the Second Preferred Stock. "Second Registration Statement" means the Registration Statement on Form S-3 (No. 33-59446) under the Securities Act which registered the offering and sale of the Second Preferred Stock and which became effective on April 13, 1993. "Section" refers to a "section" or "subsection" of this Agreement unless specifically indicated otherwise. FIFTH RESTATED CREDIT AGREEMENT PAGE 27 34 "Securities Purchase Agreements" means those certain Securities Purchase Agreements dated November 22, 1989, by and between SOI and John Hancock Mutual Life Insurance Company, Natural Gas Partners, L.P. and New England Mutual Life Insurance Company. "SOCO Perm" means SOCO Perm Russia, Inc., a Delaware corporation. "SOCO Perm Guaranty" means a Guarantee contemplated to be issued by SOCO Perm in favor of OPIC pursuant to the draft letter of intent between Borrower, PERMTEX and OPIC, a copy of which was provided by Borrower to the Banks prior to the date of this Agreement. "Special Cash Flow Cure Period" means the period commencing on the last day of any fiscal quarter for which Borrower's ratio of Consolidated Cash Flow to Consolidated Total Covered Debt was less than required by Section 10.4 and ending on the earlier of (a) ninety (90) days following the expiration of such quarter, or (b) the date specified in a written notice from the Agent stating that Majority Banks have, in their discretion, selected such date as the expiration date for such Special Cash Flow Cure Period. "Special Determination" means any determination of the Borrowing Base pursuant to Section 4.3. "Subordinated Notes" means Borrower's 13.5% Subordinated Notes due October 1, 1996 which have been paid in full prior to the date of this Agreement. "Subsidiary" means, for any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions (including that of a general partner) are at the time directly or indirectly owned, collectively, by such Person and any Subsidiaries of such Person. The term Subsidiary shall include Subsidiaries of Subsidiaries (and so on). Notwithstanding the foregoing, for all purposes of this Credit Agreement, DJ Partners, L.P. shall be deemed a "Subsidiary" of Borrower. "SWAT" means SOCO Wattenberg Corporation, a Delaware corporation, which is a wholly owned Subsidiary of Borrower. "Taxes" means all taxes, assessments, filing or other fees, levies, imposts, duties, deductions, withholdings, stamp taxes, interest equalization taxes, capital transaction taxes, foreign exchange taxes or other charges, or other charges of any nature whatsoever, from time to time or at any time imposed by law or any federal, state or local governmental agency. "Tax" means any one of the foregoing. "Third Convertible Debentures" means Borrower's 7% Convertible Subordinated Notes Due 2001 issued pursuant to the Third Registration Statement. FIFTH RESTATED CREDIT AGREEMENT PAGE 28 35 "Third Indenture" means an Indenture entered into by and between Borrower and the Third Indenture Trustee setting forth the terms of the Third Convertible Debentures. "Third Indenture Trustee" means Texas Commerce Bank National Association and any successor trustee appointed pursuant to the Third Indenture. "Third Party Letters of Credit" means letters of credit which are (a) permitted pursuant toSections 2.1(b) and 9.1, (b) not issued pursuant to Section 2.1(b), (c) with the exception of Cash Secured Third Party Letters of Credit, unsecured, and (d) issued solely to secure Borrower's and its Subsidiaries' obligations under Hedge Transactions permitted by Section 9.11. "Third Party Letter of Credit Exposure" means the unfunded portion of Third Party Letters of Credit outstanding at any time. "Third Registration Statement" means the Registration Statement on Form S-3 (No. 33-52807) under the Securities Act which registered the offering and sale of the Third Convertible Debentures and which became effective on May 5, 1994. "Total Borrowing Base" has the meaning set forth inSection 4.2 hereof. "Total Commitment" means the aggregate of all Banks' Commitments. "Total Facility A Commitment" means the aggregate of all Banks' Facility A Commitments. "Total Facility B Commitment" means the aggregate of all Banks' Facility B Commitments. "Under Funded Facility A Bank" means any Bank which is not Fully Funded under Facility A and which holds Committed Facility A Loans and Letter of Credit Exposure which, when considered in the aggregate, are less than its Facility A Commitment Percentage of the sum of (a) all Committed Facility A Loans held by all Banks, and (b) the aggregate Letter of Credit Exposure of all Banks. "Under Funded Facility B Bank" means any Bank which is not Fully Funded under Facility B and which holds Committed Facility B Loans which are less than its Facility B Commitment Percentage of all Committed Facility B Loans held by all Banks. "Unrestricted Subsidiaries" shall mean any Subsidiary of Borrower which is not a Restricted Subsidiary. "Unused Facility A Availability" means, at any time, the remainder of (a) the Facility A Borrowing Base at such time, minus (b) the sum of (i) the aggregate Letter of Credit FIFTH RESTATED CREDIT AGREEMENT PAGE 29 36 Exposure of all Banks at such time, plus (ii) the aggregate outstanding principal balance of all Facility A Loans at such time. "Unused Facility B Availability" means, at any time, the remainder of (a) the Facility B Borrowing Base at such time, minus (b) the aggregate outstanding principal balance of all Facility B Loans at such time. "Unused Facility A Availability of each Bank" means, for each Bank at any time, the remainder of (a) such Bank's Commitment Percentage of the Facility A Borrowing Base at such time, minus (b) the sum of (i) the Letter of Credit Exposure of such Bank at such time, plus (ii) the principal balance of all Facility A Loans held by such Bank at such time. "Unused Facility B Availability of each Bank" means, for each Bank at any time, the remainder of (a) such Bank's Facility B Commitment Percentage of the Facility B Borrowing Base at such time, minus (b) the principal balance of all Facility B Loans held by such Bank at such time. "WYGAP Lease" means that certain Barrell Springs Gathering System Lease and Option Agreement dated September 1, 1987 by and between Washakie Gathering Company and Northwest Pipeline Corporation pursuant to which Wyoming Gathering and Production Company leases certain gas transmission facilities. SECTION 1.2. Accounting Terms and Determinations. Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally accepted accounting principles as in effect from time to time, applied on a basis consistent with the most recent audited consolidated financial statements of Borrower and its Consolidated Subsidiaries delivered to the Banks except for changes concurred in by Borrower's independent certified public accountants and which are disclosed to the Agent on the next date on which financial statements are required to be delivered to the Banks pursuant to Section 8.1(a) or (b); provided that, unless Required Banks shall otherwise agree in writing, no such change shall modify or affect the manner in which compliance with the covenants contained in Article X are computed such that all such computations shall be conducted utilizing financial information presented consistently with prior periods. ARTICLE II THE CREDIT FACILITIES SECTION 2.1. Facility A Commitments. (a) Each Bank severally agrees, subject to Section 2.1(c) and the other terms and conditions set forth in this Agreement, to lend to Borrower from time to time during the Facility A Credit Period amounts not to exceed in the aggregate at any one time outstanding, the amount of such Bank's Facility A FIFTH RESTATED CREDIT AGREEMENT PAGE 30 37 Commitment reduced by an amount equal to the sum of such Bank's Letter of Credit Exposure and such Bank's Facility A Commitment Percentage of Third Party Letter of Credit Exposure. Facility A Loans made pursuant to this Section 2.1(a) shall be Committed Facility A Loans or, solely at the option of each Bank, Competitive Bid Facility A Loans. Notwithstanding the foregoing, Borrower shall not be entitled to obtain Facility A Loans from a Bank and no Bank shall be permitted to make Facility A Loans to Borrower in an amount which would cause the sum of (i) all Facility A Loans held by such Bank, and (ii) such Bank's Letter of Credit Exposure to exceed such Bank's Facility A Commitment Percentage of the Facility A Availability then in effect. Each Committed Facility A Borrowing (i) shall be in an aggregate principal amount of $1,000,000 or any larger integral multiple of $100,000 (except that any Base Rate Committed Facility A Borrowing may be in an amount equal to the difference between the Facility A Availability and the Facility A Outstandings), and (ii) shall be made (A) first, by any Bank which is an Under Funded Facility A Bank to the extent necessary to eliminate the under funded position of such Bank, and (B) then, from the Banks ratably in accordance with their respective Facility A Commitment Percentages; provided, that to the extent any Bank's ability to make any Committed Facility A Loan on the occasion of any Committed Borrowing is reduced pursuant to the restriction contained in the third sentence of this Section 2.1(a), such Bank shall make a Committed Facility A Loan in the maximum amount it is permitted to make without violating such restriction and the remaining Banks which are not subject to such restriction shall make Committed Facility A Loans in an aggregate amount equal to the remaining portion of such Committed Borrowing. Such Committed Facility A Loans shall be made by such unrestricted Banks ratably based on the amount of each such unrestricted Bank's Facility A Commitment Percentage relative to the aggregate Facility A Commitment Percentages of all such unrestricted Banks. Any Competitive Bid Facility A Loans held by any Bank which are to be refinanced pursuant to a Committed Borrowing of Facility A Loans will not be deemed to be outstanding for purposes of determining the amount of Committed Facility A Loans to be made by each Bank on such Borrowing Date. Subject to the foregoing limitations and the other provisions of this Agreement, Borrower may borrow under this Section 2.1(a), repay Facility A Loans and request new Facility A Loans; provided, that any partial repayment of Committed Facility A Loans shall be applied first, to the Committed Facility A Loans held by each Over Funded Facility A Bank to the extent necessary to eliminate the over funded position of each such Bank (each such partial repayment shall be allocated to the Over Funded Facility A Banks ratably based on the amount of Committed Facility A Loans held by each Over Funded Facility A Bank), and second, to each Bank in accordance with its Facility A Commitent Percentage. Borrower, Agent and the Banks acknowledge and agree that the entire principal amount of the Facility A Loans outstanding under the Existing Credit Agreement shall be allocated to and shall be deemed Committed Facility A Loans under this Agreement. Notwithstanding any provision of this Agreement or the Loan Papers to the contrary, there shall remain outstanding (continuously until termination of all Commitments and repayment of all Loans) under Facility A or Facility B a Base Rate Loan of not less than $1,000 (the "Minimum Outstanding Balance"). The Minimum Outstanding Balance may not be prepaid except as permitted by the preceding sentence. FIFTH RESTATED CREDIT AGREEMENT PAGE 31 38 Each Bank which is an Under Funded Facility A Bank at the time an Event of Default occurs shall be irrevocably and unconditionally obligated, for so long as such Event of Default shall be continuing, to purchase from each Over Funded Facility A Bank at par, a non-recourse participation interest in all outstanding Committed Facility A Loans and all Letter of Credit Exposure held by each Over Funded Facility A Bank in an amount which (after giving effect to the simultaneous fulfillment of the obligations pursuant to this paragraph of all other Under Funded Facility A Banks) will result in the elimination of the under funded Facility A position of each Under Funded Facility A Bank and the over funded Facility A position of each Over Funded Facility A Bank. Each Under Funded Facility A Bank will pay the purchase price for each participation interest required to be purchased by it pursuant to this paragraph by wire transfer of immediately available funds promptly upon being advised by Agent of the occurrence of an Event of Default, but in all events within two (2) Domestic Business Days following demand by any Over Funded Facility A Bank. (b) The Agent, or such Bank designated by the Agent which (without obligation to do so) consents to the same ("Issuer") will, from time to time during the Facility A Credit Period, upon request by Borrower, issue Letters of Credit for the account of Borrower or any Restricted Subsidiary designated by Borrower, so long as (i) the sum of (A) the total Third Party Letter of Credit Exposure then existing, (B) the total Letter of Credit Exposure then existing, and (C) the amount of the requested Letter of Credit does not exceed fifteen percent (15%) of the lesser of (y) the Total Facility A Commitment, and (z) the Facility A Borrowing Base, and (ii) Borrower would be entitled to a Facility A Borrowing under Section 2.1(a) in the amount of the requested Letter of Credit. Not less than three (3) Domestic Business Days prior to the requested date of issuance of any such Letter of Credit, Borrower (and any Restricted Subsidiary for whose account such Letter of Credit is being issued) shall execute and deliver to Issuer, Issuer's customary letter of credit application. Each Letter of Credit shall be in the minimum amount of $10,000 and shall be in form and substance acceptable to Issuer. No Letter of Credit shall have an expiration date later than the earlier of (i) the Facility A Termination Date, or (ii) one (1) year from the date of issuance. Upon the date of issuance of a Letter of Credit, Issuer shall be deemed to have sold to each other Bank, and each other Bank shall be deemed to have unconditionally and irrevocably purchased from Issuer, a non recourse participation in the related Letter of Credit and Letter of Credit Exposure equal to the amount of any Committed Facility A Loan which such Bank would be required to make under Section 2.1(a) if Borrower were requesting a Committed Borrowing under Facility A on such day in the amount of such Letter of Credit. Upon request of any Bank, but not less often than quarterly, Agent shall provide notice to each Bank by telephone, teletransmission or telex setting forth each Letter of Credit issued and outstanding pursuant to the terms hereof and specifying the Issuer, beneficiary and expiration date of each such Letter of Credit, each Bank's percentage of each such Letter of Credit and the actual dollar amount of each Bank's participation held by the Issuer(s) thereof for such Bank's account and risk. If any Letter of Credit is presented for payment by the beneficiary thereof, the Agent shall cause a Committed Borrowing comprised of Base Rate Facility A Loans to be made from each FIFTH RESTATED CREDIT AGREEMENT PAGE 32 39 Bank participating in such Letter of Credit and Letter of Credit Exposure to reimburse Issuer for the payment under the Letter of Credit, whether or not Borrower would then be entitled to a Committed Facility A Borrowing pursuant to the terms hereof, and each Bank which participated in such Letter of Credit and Letter of Credit Exposure shall be obligated to make a Facility A Base Rate Loan equal to the amount of its participation interest. At the time of issuance of each Letter of Credit, Borrower shall pay to the Agent a fee equal to the sum of (i) one-eighth of one percent (1/8%) per annum (based on the face amount and term of such Letter of Credit), plus (ii) one percent (1.0%) per annum (based upon the amount and term of such Letter of Credit). The Agent shall distribute the fee described in subclause (i) of the preceding sentence paid on issuance of such Letter of Credit to the Issuer of such Letter of Credit. The remaining portion of such fee shall be paid to the Banks participating in such Letter of Credit and Letter of Credit Exposure based on the relative amounts of their participation in such Letter of Credit and Letter of Credit Exposure. Borrower, Agent and the Banks acknowledge that five Letters of Credit which were issued pursuant to the Existing Credit Agreement remain outstanding. Each of such existing Letters of Credit will be deemed to be "Letters of Credit" under and for purposes of this Section 2.1(b). Upon the occurrence of an Event of Default, Borrower shall, on the next succeeding Domestic Business Day, deposit with the Agent such funds as the Agent may request, up to a maximum amount equal to the aggregate existing Letter of Credit Exposure of all Banks. Any funds so deposited shall be held by the Agent for the ratable benefit of all Banks as security for the Loans, and Borrower will, in connection therewith, execute and deliver such security agreements in form and substance satisfactory to the Agent which it may, in its discretion, require. As drafts or demands for payment are presented under any Letter of Credit, the Agent shall apply such funds to satisfy such drafts or demands. When all Letters of Credit have expired and the Loans have been repaid in full (and no Bank has any obligation to make further Loans or issue Letters of Credit hereunder) or such Event of Default has been cured to the satisfaction of Required Banks, the Agent shall release to Borrower any remaining funds deposited under this Section 2.1(b). Whenever Borrower is required to make deposits under thisSection 2.1(b) and fails to do so on the day such deposit is due, the Agent or any Bank may, without notice to Borrower, make such deposit (whether by application of proceeds of any collateral for the Loans, by transfers from other accounts maintained with any Bank or otherwise) using any funds then available to any Bank of Borrower, any guarantor, or any other person liable for all or any part of the Loans. (c) No Bank will be obligated to lend to Borrower under Facility A or incur Letter of Credit Exposure, and Borrower shall not be entitled to borrow under Facility A any amount or obtain Letters of Credit hereunder in an amount which would cause Borrower's Adjusted Consolidated Senior Debt to exceed the Facility A Borrowing Base then in effect under Article IV. No Bank shall be obligated to fund Facility A Borrowings hereunder and Borrower shall not be entitled to Facility A Borrowings hereunder during the FIFTH RESTATED CREDIT AGREEMENT PAGE 33 40 existence of a Borrowing Base Deficiency or a breach of Section 10.4 (regardless of whether the applicable cure periods shall have expired with respect thereto). Nothing in this Section 2.1(c) shall be deemed to limit any Bank's obligation to fund Facility A Base Rate Loans with respect to its participation in Letters of Credit in connection with any Committed Borrowing comprised of Base Rate Facility A Loans made as a result of the drawing under any Letter of Credit. SECTION 2.2. Facility B Commitment. (a) Each Bank severally agrees, subject to Section 2.2(b) and the other terms and conditions set forth in this Agreement, to lend to Borrower from time to time during the Facility B Credit Period amounts not to exceed in the aggregate at any one time outstanding the amount of its Facility B Commitment. Facility B Loans made pursuant to this Section 2.2 shall be Committed Facility B Loans or, solely at the option of each Bank, Competitive Bid Facility B Loans. Borrower shall not be entitled to obtain Facility B Loans from a Bank and no Bank shall be entitled to make Facility B Loans to Borrower in an amount which would cause the sum of all Facility B Loans held by such Bank to exceed such Bank's Facility B Commitment Percentage of the Facility B Borrowing Base then in effect. Each Committed Borrowing under Facility B (i) shall be in an aggregate principal amount of $1,000,000 or any larger integral multiple of $100,000 (except that any Committed Borrowing comprised of Base Rate Facility B Loans may be in the amount of the Unused Facility B Availability), and (ii) shall be made (A) first from any Under Funded Facility B Bank in an amount necessary to eliminate the under funded position of such Bank, and (B) then, from the Banks ratably in accordance with their respective Facility B Commitment Percentages; provided, that, to the extent any Bank's ability to make Committed Facility B Loans on the occasion of any Committed Borrowing is reduced pursuant to the restriction contained in the third sentence of this Section 2.2(a), such Bank shall make a Committed Facility B Loan in the maximum amount it is permitted to make without violating such restriction and the remaining Banks which are not subject to such restriction shall make Committed Facility B Loans in an aggregate amount equal to the remaining portion of such Committed Borrowing. Such Committed Facility B Loans shall be made by such unrestricted Banks ratably based on the amount of each such unrestricted Bank's Facility B Committed Percentage relative to the aggregate Facility B Commitment Percentages of all such unrestricted Banks. Any Competitive Bid Facility B Loans held by any Bank which are to be refinanced pursuant to a Committed Borrowing of Facility B Loans will not be deemed to be outstanding for purposes of determining the amount of Committed Facility B Loans to be made by each Bank on such Borrowing Date. Subject to the foregoing limitations and the other provisions of this Agreement, Borrower may borrow under this Section 2.2(a), repay Facility B Loans and request new Facility B Loans; provided, that prior to an Event of Default, all partial repayments of Committed Facility B Loans shall be applied first, to the Committed Facility B Loans held by each Over Funded Facility B Bank to the extent necessary to eliminate the over funded position of each such Bank (each such partial repayment shall be allocated to the Over Funded Facility B Banks ratably based on the amount of Facility B Loans held by each Over Funded Facility B Bank), and second, to each Bank in accordance with its Facility B Commitment Percentage. FIFTH RESTATED CREDIT AGREEMENT PAGE 34 41 Each Bank which is an Under Funded Facility B Bank at the time an Event of Default occurs shall be irrevocably and unconditionally obligated, for so long as such Event of Default shall be continuing, to purchase from each Over Funded Facility B Bank at par, a fully non-recourse participation interest in all outstanding Committed Facility B Loans held by each Over Funded Facility B Bank in an amount which (after giving effect to the simultaneous fulfillment of the obligations pursuant to this paragraph of all other Under Funded Facility B Banks) will result in the elimination of the under funded Facility B position of each Under Funded Facility B Bank and the over funded Facility B position of each over Funded Facility B Bank. Each Under Funded Facility B Bank will pay the purchase price for each participation interest required to be purchased by it pursuant to this paragraph by wire transfer of immediately available funds promptly upon being advised by Agent of the occurrence of an Event of Default, but in all events within two (2) Domestic Business Days following demand by any Over Funded Facility B Bank. (b) No Bank will be obligated to lend to Borrower under Facility B and Borrower shall not be entitled to borrow any amount under Facility B which would cause the aggregate outstanding principal balance of all Facility B Loans to exceed the Facility B Borrowing Base then in effect under Article IV. No Bank shall be obligated to fund Facility B Borrowings hereunder and Borrower shall not be entitled to Facility B Borrowings hereunder during the existence of a Borrowing Base Deficiency or a breach of Section 10.4 (regardless of whether the applicable cure periods shall have expired with respect thereto). SECTION 2.3. Method of Borrowing. 2.3.1. Competitive Bid Procedure. (a) In order to request Competitive Bids, Borrower shall hand deliver, telex or telecopy to the Agent a duly completed Competitive Bid Request, to be received by the Agent (i) in the case of Eurodollar Loans, not later than 12:00 noon (Dallas, Texas time), five (5) Eurodollar Business Days before the Borrowing Date specified for a proposed Competitive Bid Borrowing comprised of Eurodollar Loans and (ii) in the case of Fixed Rate Loans, not later than 12:00 noon (Dallas, Texas time), two (2) Business Days before the Borrowing Date specified for a proposed Competitive Bid Borrowing comprised of Fixed Rate Loans. No Base Rate Loan shall be requested, or, except pursuant to Section 13.2 or Section 13.4, made pursuant to, a Competitive Bid Request. A Competitive Bid Request that does not conform substantially to the format ofExhibit B-1 may be rejected at the Agent's sole discretion, and the Agent shall promptly notify Borrower of such rejection by telex or telecopier. Each Competitive Bid Request shall in each case refer to this Agreement and specify (w) whether the Competitive Bid Loans then being requested are to be Facility A Loans or Facility B Loans, (x) whether the Competitive Bid Loans then being requested are to be Eurodollar Loans or Fixed Rate Loans, (y) the Borrowing Date of such FIFTH RESTATED CREDIT AGREEMENT PAGE 35 42 Competitive Bid Loans (which shall be a Domestic Business Day or a Eurodollar Business Day, as applicable) and the aggregate principal amount thereof (which in the case of Facility A Loans shall not be less than $5,000,000 or greater than the Unused Facility A Availability on such Borrowing Date and shall be an integral multiple of $500,000 and with respect to Facility B Loans shall not be less than $5,000,000 or greater than the Unused Facility B Availability on such Borrowing Date and shall be in an integral multiple of $500,000), and (z) the Interest Period with respect thereto. Promptly after its receipt of a Competitive Bid Request that is not rejected as aforesaid, the Agent shall invite by telex or telecopier (in the form set forth in Exhibit B-2 hereto) the Banks to bid, on the terms and conditions of this Agreement, to make Competitive Bid Loans pursuant to such Competitive Bid Request. (b) Each Bank may, in its sole discretion, make one or more Competitive Bids to Borrower responsive to each Competitive Bid Request. Each Competitive Bid by a Bank must be received by the Agent via telex or telecopier, in the form of Exhibit B-3 hereto, (i) in the case of Eurodollar Loans, not later than 12:00 noon (Dallas, Texas time), four (4) Eurodollar Business Days before the Borrowing Date specified for a proposed Competitive Bid Borrowing comprised of Eurodollar Loans and (ii) in the case of Fixed Rate Loans, not later than 9:00 a.m. (Dallas, Texas time), one (1) Domestic Business Day before the Borrowing Date specified for a proposed Competitive Bid Borrowing comprised of Fixed Rate Loans. Competitive Bids that do not conform substantially to the format of Exhibit B-3 may be rejected by the Agent after conferring with, and upon the instruction of Borrower, and the Agent shall notify the Bank of such rejection as soon as practicable. Each Competitive Bid shall refer to this Agreement and (x) specify the principal amount (which shall be in a minimum principal amount of $1,000,000 and in an integral multiple of $500,000 and which, subject to the conditions set forth in Section 2.1 with respect to Facility A Loans, or in Section 2.2 with respect to Facility B Loans, may equal the entire principal amount of the Competitive Bid Borrowing requested by Borrower) of the Competitive Bid Loan that the Bank is willing to make to Borrower, (y) specify the Competitive Bid Rate at which the Bank is prepared to make the Competitive Bid Loan and (z) confirm the Interest Period with respect thereto specified by Borrower in its Competitive Bid Request. If any Bank shall elect not to make a Competitive Bid, such Bank shall so notify the Agent via telex (i) in the case of Eurodollar Loans, not later than 12:00 noon (Dallas, Texas time), four (4) Eurodollar Business Days before the Borrowing Date specified for a proposed Competitive FIFTH RESTATED CREDIT AGREEMENT PAGE 36 43 Bid Borrowing comprised of Eurodollar Loans, and (ii) in the case of Fixed Rate Loans, not later than 9:00 a.m. (Dallas, Texas time), one (1) Domestic Business Day before the Borrowing Date specified for a proposed Competitive Bid Borrowing comprised of Fixed Rate Loans; provided, however, that failure by any Bank to give such notice shall not cause such Bank to be obligated to make any Competitive Bid Loan as part of such Competitive Bid Borrowing. A Competitive Bid submitted by a Bank pursuant to this paragraph (b) shall be irrevocable. (c) The Agent shall promptly notify Borrower by telex or telecopier of all the Competitive Bids made, the Competitive Bid Rate and the principal amount of each Competitive Bid Loan in respect of which a Competitive Bid was made and the identity of the Bank that made each bid. The Agent shall send a copy of all Competitive Bids to Borrower for its records as soon as practicable after completion of the bidding process set forth in this Section 2.3.1. (d) Borrower may in its sole and absolute discretion, subject only to the provisions of this Section 2.3.1(d), accept or reject any Competitive Bid referred to in paragraph (c) above; provided, howeve, that the aggregate amount of the Competitive Bids so accepted by Borrower may not exceed the principal amount of the Competitive Bid Borrowing requested by Borrower. Borrower shall notify the Agent by telex or telecopier whether and to what extent it has decided to accept or reject any or all of the bids referred to in paragraph (c) above, (i) in the case of Eurodollar Loans, not later than 12:00 noon (Dallas, Texas time), three (3) Eurodollar Business Days before the Borrowing Date specified for a proposed Competitive Bid Borrowing, and (ii) in the case of Fixed Rate Loans, not later than 9:00 a.m., (Dallas, Texas time), one (1) Domestic Business Day before the Borrowing Date specified for a proposed Competitive Bid Borrowing; provided, however, that (w) the failure by Borrower to give such notice shall be deemed to be a rejection of all the bids referred to in paragraph (c) above, (x) Borrower shall not accept a bid made at a particular Competitive Bid Rate if Borrower has decided to reject a bid made at a lower Competitive Bid Rate, (y) if Borrower shall accept bids made at a particular Competitive Bid Rate but shall be restricted by other conditions hereof from borrowing the principal amount of Competitive Bid Loans in respect of which bids at such Competitive Bid Rate have been made, then Borrower shall accept a pro rata portion of each bid made at such Competitive Bid Rate based as nearly as possible on the respective principal amounts of Competitive Bid Loans for which such bids were made, and (z) no bid shall be FIFTH RESTATED CREDIT AGREEMENT PAGE 37 44 accepted for a Competitive Bid Loan unless such Competitive Bid Loan is in a minimum principal amount of $1,000,000 and an integral multiple of $500,000. Notwithstanding the foregoing, if it is necessary for Borrower to accept a pro rata allocation of the bids made in response to a Competitive Bid Request (whether pursuant to the events specified in clause (y) above or otherwise) and the available principal amount of Competitive Bid Loans to be allocated among the Banks is not sufficient to enable Competitive Bid Loans to be allocated to each Bank in a minimum principal amount of $1,000,000 and in integral multiples of $500,000, then Borrower shall select the Banks to be allocated such Competitive Bid Loans and shall round allocations up or down to the next higher or lower multiple of $500,000 as it shall deem appropriate. A notice given by Borrower pursuant to this paragraph (d) shall be irrevocable. (e) The Agent shall promptly notify each bidding Bank whether or not its Competitive Bid has been accepted (and if so, in what amount and at what Competitive Bid Rate) by telex or telecopier sent by the Agent, and each successful bidder will thereupon become bound, subject to the other applicable conditions hereof, to make the Competitive Bid Loan in respect of which its bid has been accepted. After completing the notifications referred to in the immediately preceding sentence, the Agent shall notify each Bank of the aggregate principal amount of all Competitive Bids accepted. (f) Upon determination by the Agent of the Adjusted London Interbank Offered Rate applicable to any Eurodollar Loan to be made by any Bank pursuant to a Competitive Bid that has been accepted by Borrower pursuant to Section 2.3.1(d), the Agent shall notify such Bank of (i) the applicable Adjusted London Interbank Offered Rate and (ii) the sum of the applicable Adjusted London Interbank Offered Rate plus the Competitive Bid Margin bid by such Bank. (g) No Competitive Bid Borrowing shall be made within five (5) Business Days of the date of any other Competitive Bid Borrowing unless Borrower and the Agent shall mutually agree otherwise. (h) If the Agent shall at any time have a Commitment hereunder and shall elect to submit a Competitive Bid in its capacity as a Bank, it shall submit such bid directly to Borrower at least one half of an hour earlier than the latest time at which the other Banks are required to submit their bids to the Agent pursuant to paragraph (b) above. FIFTH RESTATED CREDIT AGREEMENT PAGE 38 45 (i) All notices required by this Section 2.3.1 shall be made in accordance with Section 14.1. 2.3.2. Method of Committed Borrowing. (a) In order to request Committed Loans, Borrower shall hand deliver, telex or telecopy to the Agent a duly completed Request for Committed Loans prior to 12:00 noon (Dallas, Texas time), (i) at least one (1) Domestic Business Day before the Borrowing Date specified for a proposed Base Rate Borrowing, (ii) at least two (2) Domestic Business Days before the Borrowing Date specified for a proposed CD Rate Borrowing, and (iii) at least three (3) Eurodollar Business Days before the Borrowing Date of a proposed Eurodollar Borrowing. Each Request for Committed Loans shall be substantially in the form of Exhibit B-4 hereto, and shall specify: (i) the Borrowing Date of such Committed Borrowing, which shall be a Domestic Business Day in the case of a Committed Borrowing comprised of Base Rate Loans or a Committed Borrowing comprised of CD Rate Loans, or a Eurodollar Business Day in the case of a Committed Borrowing comprised of Eurodollar Loans; (ii) the aggregate amount of such Committed Borrowing; (iii) whether the Loans comprising such Committed Borrowing are to be Base Rate Loans, CD Rate Loans or Eurodollar Loans; (iv) in the case of a Committed Borrowing comprised of Eurodollar Loans or a Committed Borrowing comprised of CD Rate Loans, the duration of the Interest Period applicable thereto, subject to the provisions of the definition of Interest Period; and (v) whether such Committed Borrowing shall be comprised of Facility A Loans or Facility B Loans. (b) Upon receipt of a Request for Committed Loans, the Agent shall promptly notify each Bank of the contents thereof and the amount of the Committed Borrowing to be loaned by such Bank pursuant thereto, and such Request for Committed Loans shall not thereafter be revocable by Borrower. (c) Not later than 12:00 noon (Dallas, Texas time) on the date of each Committed Borrowing, each Bank shall (except as provided in FIFTH RESTATED CREDIT AGREEMENT PAGE 39 46 Section 2.3.2(d)) make available that portion of such Committed Borrowing allocated to such Bank pursuant to Section 2.1(a) or 2.2(a) (as applicable), in Federal or other funds immediately available in Dallas, Texas to the Agent at its address referred to in Section 14.1. Notwithstanding the foregoing, if Borrower delivers to Agent a Request for Committed Loans prior to 10:00 a.m. (Dallas, Texas time) on a Domestic Business Day requesting a Committed Borrowing comprised of Base Rate Loans on such day, each Bank shall use its best efforts to make available to the Agent that portion of such Committed Borrowing allocated to such Bank pursuant to Section 2.1 or 2.2 (as applicable) by 1:00 p.m. (Dallas, Texas time) on the same day. Unless the Agent determines that any applicable condition specified in Section 6.2 has not been satisfied, the Agent will make the funds so received from the Banks available to Borrower at the Agent's aforesaid address. (d) If any Bank makes a new Committed Loan hereunder on a day on which Borrower is to repay all or any part of an outstanding Loan from such Bank, such Bank shall apply the proceeds of its new Committed Loan to make such repayment and only an amount equal to the difference (if any) between the amount being borrowed and the amount being repaid shall be made available by such Bank to the Agent or remitted by Borrower to the Agent, as the case may be. SECTION 2.4.Notes. The Committed Facility A Loans of each Bank shall be evidenced by a single Committed Facility A Note payable to the order of such Bank in an amount equal to such Bank's Facility A Commitment. The Competitive Bid Facility A Loans of each Bank shall be evidenced by a single Competitive Bid Facility A Note payable to the order of such Bank in an amount equal to such Bank's Facility A Commitment. The Committed Facility B Loans of each Bank shall be evidenced by a single Committed Facility B Note payable to the order of such Bank in an amount equal to such Bank's Facility B Commitment. The Competitive Bid Facility B Loans of each Bank shall be evidenced by a single Competitive Bid Facility B Note payable to the order of such Bank in an amount equal to such Bank's Facility B Commitment. Each Committed Facility A Note shall be in substantially the form of Exhibit C-1. Each Competitive Bid Facility A Note shall be in substantially the form of Exhibit C-2. Each Competitive Bid Facility B Note shall be substantially in the form of Exhibit D-2. Each Committed Facility B Note shall be in substantially the form of Exhibit D-1. SECTION 2.5. Maturity of Loans. Each Loan shall mature, and the principal amount thereof shall be due and payable, on the last day of the Interest Period applicable to such Loan. FIFTH RESTATED CREDIT AGREEMENT PAGE 40 47 SECTION 2.6. Interest Rates. (a) Each Committed Base Rate Loan shall bear interest on the outstanding principal balance thereof at a rate per annum equal to the sum of the Applicable Margin plus the Base Rate in effect from day to day, each change in the Base Rate to be effective without notice to Borrower on the effective date of each such change, provided that in no event shall the rate charged hereunder or under the Notes exceed the Maximum Lawful Rate. Interest on each Base Rate Loan shall be payable on the last date of the Interest Period applicable thereto. (b) Each Eurodollar Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to (i) in the case of each Committed Loan the sum of the Applicable Margin plus the applicable Adjusted London Interbank Offered Rate, and (ii) in the case of each Competitive Bid Loan the applicable Adjusted London Interbank Offered Rate for the Interest Period in effect for such Loan plus the Competitive Bid Margin specified by a Bank with respect to such Loan in its Competitive Bid submitted pursuant to Section 2.3.1(b); provided that in no event shall the rate charged hereunder or under the Notes exceed the Maximum Lawful Rate. Interest on each Eurodollar Loan having an Interest Period of one, two or three months shall be payable on the last day of the Interest Period applicable thereto. Interest on each Eurodollar Loan having an Interest Period of six, nine, or twelve months shall be payable on the last day of the Interest Period applicable thereto and on each June 30, September 30, December 31 and March 31 during such Interest Period. (c) Each CD Rate Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum of the Applicable Margin plus the applicable Adjusted CD Rate; provided that in no event shall the rate charged hereunder or under the Notes exceed the Maximum Lawful Rate. Interest on each CD Rate Loan having an Interest Period of thirty (30), sixty (60) or ninety (90) days shall be payable on the last day of the Interest Period applicable thereto. Each CD Rate Loan having an Interest Period of one hundred eighty (180), two hundred seventy (270) or three hundred sixty (360) days shall be payable on the expiration of such Interest Period and on each June 30, September 30, December 31 and March 31 during such Interest Period. (d) Each Fixed Rate Loan shall bear interest at a rate per annum (computed on the basis of the actual number of days elapsed over a year of 360 days) equal to the Fixed Rate of Interest offered by the Bank making such Competitive Bid Fixed Rate Loan and accepted by Borrower pursuant to Section 2.3.1; provided, that in no event shall the rate charged hereunder or under the Notes exceed the Maximum Lawful Rate. Interest on each Fixed Rate Loan having an Interest Period of 90 days or less shall be payable on the last day of the Interest Period applicable thereto. Each Fixed Rate Loan having an Interest Period greater than 90 days shall be payable on the expiration of such Interest Period and on each March 31, June 30, September 30 and December 31 during such Interest Period. FIFTH RESTATED CREDIT AGREEMENT PAGE 41 48 (e) With respect to Committed Loans, the Agent shall determine each interest rate applicable to the Committed Loans in accordance with the terms hereof. The Agent shall promptly notify Borrower and the Banks by telex, telecopy or cable of each rate of interest so determined, and its determination thereof shall be conclusive in the absence of manifest error. (f) With respect to Competitive Bid Loans, the Agent shall determine the Adjusted London Interbank Offered Rate for each Interest Period applicable to the Competitive Bid Loans in accordance with the terms hereof. The Agent shall promptly notify Borrower and the affected Banks by telex, telecopy or cable of each such determination thereof and its determination thereof shall be conclusive absent manifest error. (g) Notwithstanding the foregoing, if at any time the rate of interest calculated with reference to the Base Rate, the CD Rate, the Fixed Rate or the London Interbank Offered Rate hereunder (the "contract rate") is limited to the Maximum Lawful Rate, any subsequent reductions in the contract rate shall not reduce the rate of interest on the affected Loan below the Maximum Lawful Rate until the total amount of interest accrued equals the amount of interest which would have accrued if the contract rate had at all times been in effect. In the event that at maturity (stated or by acceleration), or at final payment of any Note, the total amount of interest paid or accrued on such Note is less than the amount of interest which would have accrued if the contract rate had at all times been in effect with respect thereto, then at such time, to the extent permitted by law, Borrower shall pay to the holder of such Note an amount equal to the difference between (i) the lesser of the amount of interest which would have accrued if the contract rate had at all times been in effect and the amount of interest which would have accrued if the Maximum Lawful Rate had at all times been in effect, and (ii) the amount of interest actually paid on such Note. SECTION 2.7. Application of Payments. Each repayment pursuant to Sections 2.8(a), 2.9(a), 2.10, 4.5 or 10.4 shall be made together with accrued interest to the date of payment, and shall be applied to payment of the Loans of the Banks in accordance with Section 3.2(a) and the other provisions of this Agreement. SECTION 2.8. Mandatory Termination of Facility A Commitment; Extension of Facility A Termination Date. (a) The Facility A Commitments shall terminate on the Facility A Termination Date, and any Facility A Loans then outstanding (together with accrued interest thereon) shall be due and payable on such date. (b) On or before March 15 of any year preceding the Facility A Termination Date, Borrower may request that the Banks extend the Facility A Termination Date for successive periods of one year. The Banks, in their sole discretion may agree to extend or decline to extend the Facility A Termination Date; however, if the Banks have not responded to such request in writing by May 1 of the year of Borrower's request such FIFTH RESTATED CREDIT AGREEMENT PAGE 42 49 request shall be deemed to have been denied. In the event the Banks agree to such request, Borrower and the Banks shall execute a written extension agreement in form reasonably acceptable to the Agent evidencing such extension. Borrower shall also execute new Facility A Notes in the forms attached hereto as Exhibit C-1 and Exhibit C-2 reflecting such extension and such other documents as the Agent shall reasonably request, including, without limitation, amendments to each Mortgage required by Section 5.1 hereof in form and substance acceptable to the Agent. SECTION 2.9. Mandatory Termination of Facility B Commitment; Extension of Facility B Termination Date. (a) The Facility B Commitments shall terminate on the Facility B Termination Date, and any Facility B Loans then outstanding (together with accrued interest thereon) shall be due and payable on such date. (b) Borrower may by notice to Agent and each Bank delivered together with Borrower's notice specifying the amount of the Total Borrowing Base requested by Borrower pursuant to Section 4.1 hereof, request that Banks extend the Facility B Termination Date for additional periods in each case not to extend beyond three hundred sixty four (364) days following such Determination Date. The Banks, in their sole discretion may agree to extend or decline to extend the Facility B Termination Date; however, if the Banks have not responded to such request in writing by such Determination Date, such request shall be deemed to have been denied. In the event the Banks agree to such request, Borrower and the Banks shall execute a written extension agreement in form reasonably acceptable to the Agent evidencing such extension. Borrower shall also execute new Facility B Notes in the forms attached hereto as Exhibit D-1 and Exhibit D-2 reflecting such extension and such other documents as the Agent shall reasonably request, including, without limitation, amendments to each Mortgage required by Section 5.1 hereof in form and substance acceptable to the Agent. In no event shall the Facility B Termination Date ever be extended to a date which is in excess of 364 days from the date such extension is granted. SECTION 2.10. Reduction of Commitments. (a) Borrower may by notice to the Agent one (1) Domestic Business Day prior to the effective date of any such reduction, reduce the Total Facility A Commitment (and thereby permanently reduce the Facility A Commitment of each Bank ratably in accordance with such Bank's Facility A Commitment Percentage) in amounts not less than $1,000,000 or any larger multiple of $100,000. On the effective date of any such reduction, Borrower shall, to the extent required as a result of such reduction make a principal payment on the Facility A Loans in an amount sufficient to cause Borrower's Adjusted Consolidated Senior Debt to be equal to or less than the Total Facility A Commitment as thereby reduced (and the Agent shall distribute to each Bank in like funds that portion of any such payment as is required to cause the sum of (i) the principal balance of Facility A Loans held by such Bank at such time, (ii) such Bank's aggregate Letter of Credit Exposure at such time, and (iii) such Bank's aggregate Commitment Percentage of Third Party Letter of Credit Exposure at such time to be not greater than its Facility A Commitment as thereby reduced). Notwithstanding the foregoing, Borrower shall not be permitted to voluntarily reduce the Total Facility A Commitment (i) FIFTH RESTATED CREDIT AGREEMENT PAGE 43 50 if, as a result of such reduction, Borrower would be required to prepay all or any portion of the principal amount of any Eurodollar Loan, Fixed Rate Loan or CD Rate Loan prior to the last day of the Interest Period applicable thereto, (ii) to an amount less than the aggregate Letter of Credit Exposure and Third Party Letter of Credit Exposure of all Banks, or (iii) to an amount which would result in the Total Facility A Commitment being less than the Total Facility B Commitment. (b) Borrower may by notice to the Agent one (1) Domestic Business Day prior to the effective date of any such reduction, reduce the Total Facility B Commitment (and thereby reduce the Facility B Commitment of each Bank ratably in accordance with such Bank's Unadjusted Commitment Percentage) in amounts not less than $1,000,000 or any larger multiple of $100,000. On the effective date of any such reduction, Borrower shall, to the extent required as a result of such reduction, make a principal payment on the Facility B Loans in an amount sufficient to cause the outstanding principal balance of the Facility B Loans to be equal to or less than the Total Facility B Commitment as thereby reduced (and the Agent shall distribute to each Bank in like funds that portion of any such payment as is required to cause the principal balance of all Facility B Loans held by such Bank to be not greater than its Facility B Commitment as thereby reduced). Notwithstanding the foregoing, Borrower shall not be permitted to voluntarily reduce the Total Facility B Commitment if, as a result of such reduction, Borrower would be required to prepay all or any portion of the principal amount of any Eurodollar Loan, Fixed Rate Loan or CD Rate Loan prior to the last day of the Interest Period applicable thereto. SECTION 2.11. Commitment Fee for Facility A. On the Facility A Termination Date and on the last day of each June, September, December and March until the Facility A Termination Date, commencing on September 30, 1994, Borrower shall pay to the Agent, for the benefit of each Bank in accordance with the allocations hereafter set forth, a commitment fee equal to three-eighths of one percent (3/8%) per annum (computed on the basis of actual days elapsed and as if each calendar year consisted of 360 days) on the average daily Unused Facility A Availability for the calendar quarter ending on such date. Such fee shall be allocated to each Bank based on the average daily Unused Facility A Availability of each Bank for such calendar quarter. SECTION 2.12. Commitment Fee for Facility B. On the Facility B Termination Date and on the last day of each June, September, December and March until the Facility B Termination Date, commencing on September 30, 1994, Borrower shall pay to the Agent, for the benefit of each Bank in accordance with the allocations hereafter set forth, a commitment fee equal to one-eighth of one percent (1/8%) per annum (computed on the basis of actual days elapsed and as if each calendar year consisted of 360 days) on the average daily Unused Facility B Availability for the calendar quarter ending on such date. Such fee shall be allocated to each Bank based on the average daily Unused Facility B Availability for each Bank during such quarter. FIFTH RESTATED CREDIT AGREEMENT PAGE 44 51 SECTION 2.13. Agency Fee. Borrower shall pay to Agent such fees and other amounts as Borrower shall be required to pay to Agent from time to time pursuant to any separate agreement between Borrower and Agent setting forth the compensation to be paid to Agent in consideration for acting as Agent hereunder. Such fees and other amounts shall be retained by Agent, and no Bank (other than Agent) shall have any interest therein. SECTION 2.14. Borrowing Base Increase Fee. In the event Borrower requests an increase in the Total Borrowing Base pursuant to Sections 4.2 or 4.3 and (a) the Banks, in their sole discretion, determine that in order to grant such increase, it is necessary to include value in the Total Borrowing Base attributable to oil and gas properties or Related Assets to be acquired by Borrower or a Restricted Subsidiary, and (b) the aggregate purchase price to be paid by Borrower and its Restricted Subsidiaries for such oil and gas properties and Related Assets exceeds $25,000,000, Borrower shall pay a fee to Agent for the ratable benefit of each Bank at the time such increase in the Total Borrowing Base is granted equal to one fourth of one percent (.25%) of the amount of such increase. The requirement for the payment of the fee contained in this Section 2.14 shall not limit or impair the discretion of the Banks to determine the Total Borrowing Base pursuant to Sections 4.2 and 4.3, including the right of the Banks to condition any increase in the Total Borrowing Base on such other conditions precedent as they shall deem necessary or appropriate under the circumstances. ARTICLE III GENERAL PROVISIONS SECTION 3.1. Delivery and Endorsement of Notes. Simultaneously with the execution of this Agreement, the Agent shall deliver to each Bank the Notes payable to such Bank referenced in Sections 6.1(a) and (b). Each Bank may endorse (and prior to any transfer of its Notes shall endorse) on the schedule attached to the relevant Note held by such Bank appropriate notations to evidence the date and amount of each Competitive Bid Loan or Committed Loan, as applicable, made by it, the Interest Period applicable thereto, and the date and amount of each payment of principal of any Competitive Bid Loan or Committed Loan, as applicable, made by Borrower with respect thereto, provided that the failure by any Bank to so endorse its Notes shall not affect the liability of Borrower for the repayment of all amounts outstanding under such Notes together with interest thereon. Each Bank is hereby irrevocably authorized by Borrower to endorse its Notes and to attach to and make a part of any Note a continuation of any such schedule as required. SECTION 3.2. General Provisions as to Payments. (a) Borrower shall make each payment of principal of, and interest on, the Loans and all fees payable hereunder not later than 12:00 noon (Dallas, Texas time) on the date when due, in Federal or other funds immediately available in Dallas, Texas, to the Agent at its address referred to in Section 14.1. The Agent will promptly (and if such payment is received by the Agent by 10:00 a.m., and otherwise if reasonably possible, on the same Domestic Business Day) distribute to each FIFTH RESTATED CREDIT AGREEMENT PAGE 45 52 Bank its share (as determined in accordance with the other provisions of this Agreement) of each such payment received by the Agent for the account of the Banks. Whenever any payment of principal of, or interest on, Base Rate Loans, CD Rate Loans, Fixed Rate Loans or of fees shall be due on a day which is not a Domestic Business Day, the date for payment thereof shall be extended to the next succeeding Domestic Business Day (subject to the definition of Interest Period). Whenever any payment of principal of, or interest on, the Eurodollar Loans shall be due on a day which is not a Eurodollar Business Day, the date for payment thereof shall be extended to the next succeeding Eurodollar Business Day (subject to the definition of Interest Period). If the date for any payment of principal is extended by operation of law or otherwise, interest thereon shall be payable for such extended time. Borrower hereby authorizes the Agent to charge from time to time against Borrower's accounts with the Agent any amount then due. (b) Prior to the occurrence of an Event of Default, all principal payments received by the Banks on Competitive Bid Loans shall be applied to the Competitive Bid Loans directed by Borrower, and all principal payments received by the Banks in respect of Committed Loans shall be applied to Committed Facility A Loans or Committed Facility B Loans as Borrower shall direct, but shall thereafter be applied to the Committed Facility A and Committed Facility B Loans of each Bank in the manner required pursuant to Section 2.1(a) and 2.2(a) hereof. Any payments so received by any Bank shall, to the extent consistent with the foregoing, be applied first, to Loans with Interest Periods ending on the date of such payment, then to Base Rate Loans next maturing, then to CD Rate Loans, Eurodollar Loans or Fixed Rate Loans (as Borrower shall elect but in the absence of such election, in such order as the Agent shall elect), next maturing until such principal payment is fully applied with such adjustments in such order of payment as the Agent shall specify in order that each Bank receives its appropriate share of each such payment. (c) After the occurrence of an Event of Default, all amounts collected or received by the Agent or any Bank shall be applied first to the payment of all proper costs incurred by the Agent in connection with the collection thereof (including reasonable expenses and disbursements of the Agent), second to the payment of all proper costs incurred by the Banks in connection with the collection thereof (including reasonable expenses and disbursements of the Banks), third to the reimbursement of any advances made by the Banks to effect performance of any unperformed covenants of Borrower or any Restricted Subsidiary under any of the Loan Papers, fourth to the payment of any unpaid fees required pursuant to Section 2.13, fifth to the payment of any unpaid fees required pursuant to Sections 2.1(b), 2.11, 2.12 and 2.14 and sixth, to payment of the Loans to each Bank based on the percentage held by such Bank of all Loans and Letter of Credit Exposure outstanding hereunder. All payments received by a Bank after the occurrence of an Event of Default for application to its Loans shall be applied by such Bank in the manner provided in Section 3.2(b). SECTION 3.3. Funding Losses. If Borrower makes any payment of principal with respect to any Eurodollar Loan, CD Rate Loan or Fixed Rate Loan (whether pursuant to FIFTH RESTATED CREDIT AGREEMENT PAGE 46 53 Article XI or XIII or as a voluntary or mandatory prepayment or otherwise) on any day other than the last day of an Interest Period applicable thereto, or if Borrower fails to borrow any Eurodollar Loan, CD Rate Loan or Fixed Rate Loan after notice has been given to any Bank in accordance with Section 2.3, Borrower shall reimburse each Bank on demand for any resulting loss or expense incurred by it, including (without limitation) any loss incurred in obtaining, liquidating or employing deposits from third parties, or any loss arising from the reemployment of funds at rates lower than the cost to such Bank of such funds and related costs, which in the case of the payment or prepayment prior to the end of the Interest Period for any Eurodollar Loan, Fixed Rate Loan or CD Rate Loan shall include the amount, if any, by which (a) the interest which such Bank would have received, absent such payment or prepayment for the applicable Interest Period exceeds (b) the interest which such Bank would receive if the amount of such Eurodollar Loan, CD Rate Loan or Fixed Rate Loan were deposited, loaned, or placed by such Bank in the interbank eurodollar market or certificate of deposit market (as applicable) on the date of such payment or prepayment for the remainder of the applicable Interest Period. Such Bank shall promptly deliver to Borrower and the Agent a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error. SECTION 3.4. Computation of Interest. Interest payable on the Loans hereunder shall be computed based on the number of actual days elapsed assuming that each calendar year consisted of 360 days. SECTION 3.5. Overdue Principal and Interest. Any overdue principal of and, to the extent permitted by law, overdue interest on any Loan (after giving effect to all grace periods) shall bear interest, payable on demand, for each day until paid at a rate per annum equal to the lesser of (a) the sum of four percent (4%) plus the Base Rate and (b) the Maximum Lawful Rate. ARTICLE IV BORROWING BASE SECTION 4.1. Reserve, Related Asset and Borrowing Base Report; Proposed Borrowing Base. As soon as available and in any event by March 15 and September 15 of each year, Borrower shall deliver to each Bank (i) a Reserve Report and Related Asset Report prepared as of the immediately preceding December 31 and June 30 respectively, and (ii) a Borrowing Base Report. On or before each April 10 and October 10 of each year, Borrower shall notify each Bank of (a) the Total Borrowing Base Borrower requests for the period commencing on the next Determination Date, and (b) the amount of such requested Total Borrowing Base to be allocated to Facility A and to Facility B pursuant to Section 4.4 hereof. SECTION 4.2. Determination of Total Borrowing Base. Based in part on the Reserve Report and Related Asset Reports delivered pursuant to Section 4.1 the Banks FIFTH RESTATED CREDIT AGREEMENT PAGE 47 54 shall determine the Total Borrowing Base to be in effect on the next succeeding Determination Date, which shall in no event exceed the Total Borrowing Base requested by Borrower pursuant to Section 4.1. Such determination shall be made by the Banks in their sole discretion in accordance with their respective standards for oil and gas loans, which may vary from Bank to Bank. Each Bank shall notify the Agent on or before ten (10) days prior to each Determination Date of the Total Borrowing Base which such Bank determines should become effective on such Determination Date. Thereafter, the Banks shall consult with each other in order to agree on the Total Borrowing Base to be effective on such Determination Date. In the event the Banks agree on such Total Borrowing Base on or before the expiration of such ten (10) day period, the Total Borrowing Base agreed to by the Banks shall become effective on the next succeeding Determination Date and shall remain in effect until the next Determination. In the event the Banks are unable to agree on the Total Borrowing Base to be effective on the next succeeding Determination Date within such ten (10) day period, the Total Borrowing Base which becomes effective on the next Determination Date shall be the weighted average (determined by reference to that percentage of the Total Commitment represented by each Bank's Commitment) of the Total Borrowing Bases requested by the Banks in the notices referred to in the third sentence of this Section 4.2 and shall remain in effect until the next Determination. The Agent shall notify Borrower of the Total Borrowing Base to become effective on each Determination Date no later than 2:00 p.m., Dallas, Texas time on such Determination Date. Without limiting the right of the Banks to determine the Total Borrowing Base in their sole discretion, Borrower acknowledges and agrees that subject to the Banks' consistent application of their respective standards for similar loans, the Banks (i) may make such assumptions regarding appropriate existing and projected pricing for hydrocarbons as they deem appropriate in their sole discretion, (ii) may make such assumptions regarding projected rates and quantities of future production of hydrocarbons from oil and gas properties and Related Assets owned by Borrower and the Restricted Subsidiaries as they deem appropriate in their sole discretion, (iii) may consider the projected cash requirements of Borrower, including, without limitation, obligations under the Preferred Stock, Convertible Debentures, and other debt service and lease obligations of Borrower and its Subsidiaries (including without limitation, the full amount Borrower may be required to pay in connection with any redemption of the Preferred Stock or Convertible Debentures with respect to which Borrower has delivered to Banks a Bank Redemption Notice), and obligations of Borrower and SWAT to the limited partner(s) of DJ Partners, L.P., (iv) are not required to consider asset other than oil and gas reserves and Related Assets, (v) are not required to consider any oil and gas reserves or Related Assets of Borrower, any of the Restricted Subsidiaries or DJ Partners, L.P. which have not been mortgaged to the Agent for the ratable benefit of the Banks to the extent required by Section 5.1, (vi) will give no consideration to any asset owned by an entity other than Borrower, the Restricted Subsidiaries or DJ Partners, L.P. and (vii) may make such other assumptions, considerations and exclusions as each Bank deems appropriate in the exercise of its sole discretion. SECTION 4.3. Special Determination of Total Borrowing Base. In addition to the redeterminations of the Total Borrowing Base pursuant to Section 4.2, Borrower and FIFTH RESTATED CREDIT AGREEMENT PAGE 48 55 Required Banks may each request one redetermination of the Total Borrowing Base during each six month period commencing on May 1 and November 1 of each year and further, Required Banks may within five (5) days following receipt of a Bank Redemption Notice, request an additional redetermination of the Total Borrowing Base in connection with such redemption. In the event the Required Banks request such a Special Determination, the Agent shall promptly deliver notice of such request to Borrower and Borrower shall, within ten (10) days following the date of such request, deliver to the Banks (i) a Related Asset Report and a Reserve Report prepared as of the last day of the calendar month preceding the date of such request, and (ii) a Borrowing Base Report. In the event Borrower requests a Special Determination, Borrower shall deliver written notice of such request to the Banks which shall include (i) a Related Asset Report and a Reserve Report prepared as of a date not more than thirty (30) days prior to the date of such request, (ii) a Borrowing Base Report, and (iii) the amount of the Total Borrowing Base requested by Borrower to become effective on the Determination Date applicable to such Special Determination and the proposed allocation of such Total Borrowing Base to be made between Facility A and Facility B in accordance with Section 4.4. Upon receipt of such Reserve Report, Related Asset Report and Borrowing Base Report the Banks shall redetermine the Total Borrowing Base in accordance with the procedure set forth in Section 4.2 which Total Borrowing Base shall become effective on the Determination Date applicable to such Special Determination and shall remain in effect until the next Determination. SECTION 4.4. Allocation of Borrowing Base. Promptly upon being advised by Agent of the Total Borrowing Base to be effective on any Determination Date, Borrower shall advise Agent and the Banks of the amount of such Total Borrowing Base to be allocated to Facility A and the amount to be allocated to Facility B; provided, that the Facility A Borrowing Base shall never be less than the Facility B Borrowing Base. The amount of the Total Borrowing Base allocated to Facility A shall be the Facility A Borrowing Base for purposes of this Agreement, and such amount shall remain the Facility A Borrowing Base until the next Determination Date. The amount of the Total Borrowing Base allocated to Facility B shall be the Facility B Borrowing Base for purposes of this Agreement, and such amount shall remain the Facility B Borrowing Base until the next Determination Date. SECTION 4.5. Over Advance. If on any Determination Date, Borrower's Adjusted Consolidated Senior Debt then outstanding is greater than the Facility A Borrowing Base which becomes effective on such Determination Date or the principal balance of all Facility B Loans then outstanding is greater than the Facility B Borrowing Base which becomes effective on such Determination Date (the amount by which Borrower's Adjusted Consolidated Senior Debt then outstanding exceeds such Facility A Borrowing Base is referred to herein as the "Facility A Over Advance" and the amount by which the outstanding principal balance of all Facility B Loans exceeds the Facility B Borrowing Base is referred to herein or the "Facility B Over Advance"), then on or before the expiration of the Over Advance Cure Period applicable to each such Over Advance, Borrower shall make principal payments (in addition to any principal payments required as a result of any pre- FIFTH RESTATED CREDIT AGREEMENT PAGE 49 56 existing Over Advance) (a) on the outstanding Facility A Loans in an aggregate amount equal to such Facility A Over Advance, and (b) on the outstanding Facility B Loans in aggregate amount equal to such Facility B Over Advance. Each Bank's share of any payment of the Facility A Over Advance shall be determined based on such Bank's Facility A Sharing Percentage. Each Bank's share of any payment of the Facility B Over Advance shall be determined based on such Bank's Facility B Sharing Percentage. SECTION 4.6. Initial Borrowing Base. Notwithstanding anything to the contrary contained herein, the Facility A Borrowing Base in effect during the period commencing on the Effective Date and continuing until the first Determination after the Effective Date shall be $100,000,000, and the Facility B Borrowing Base in effect during such period shall also be $100,000,000. ARTICLE V COLLATERAL SECTION 5.1. Security. (a) The Obligations shall be unsecured with the exception that the Obligations (i) shall be secured by first and prior Liens (subject only to Permitted Encumbrances) covering (A) all oil and gas properties and Related Assets owned by DJ Partners, L.P., (B) all Intercompany Obligations, (C) all stock and other outstanding equity interests of all Restricted Subsidiaries, (D) the Intercompany Loan, (E) all rights of Borrower under the Management Agreement, and (F) all rights of SWAT attributable to its interest in DJ Partners, L.P.; provided, that, if no Default or Event of Default then exists, Agent shall release (and each Bank hereby authorizes Agent to release) each Mortgage encumbering oil and gas properties and Related Assets owned by DJ Partners, L.P., at such time as (1) a. Borrower and Restricted Subsidiaries own one hundred percent (100%) of the outstanding partnership interests in DJ Partners, L.P., b. DJ Partners, L.P. has been designated a Restricted Subsidiary, and c. DJ Partners, L.P. has executed a Restricted Subsidiary Guaranty as contemplated by Section 5.2, or (2) the oil and gas properties and Related Assets owned by DJ Partners, L.P. have been conveyed beneficially and of record to Borrower or a Restricted Subsidiary, and (ii) the Obligations may become secured by the additional collateral referenced in Section 5.1(b) at the time and to the extent contemplated by Section 5.1(b). (b) Majority Banks may, by written notice to Borrower delivered not more than thirty (30) days following receipt by Banks of the notice from Borrower contemplated by Section 9.1 that Borrower intends to exchange the Preferred Stock for Convertible Debentures, require that Borrower and the Restricted Subsidiaries grant Agent, for the ratable benefit of each Bank, first and prior Liens (subject only to Permitted Encumbrances) on all (i) oil and gas properties owned by Borrower and Restricted Subsidiaries designated by Required Banks which have a Recognized Value (as reflected on the most recent Reserve Report delivered to Banks) of $100,000 or more (or $50,000 or more in the case of SWAT), and (ii) all Related Assets owned by Borrower and the Restricted Subsidiaries designated by FIFTH RESTATED CREDIT AGREEMENT PAGE 50 57 Required Banks which the most Related Asset Report reflects has a value of $100,000 or more. As soon as possible following notification to Borrower of Majority Banks' intent to require such Liens, Borrower shall, and shall cause each Restricted Subsidiary to, execute and deliver to Agent for the ratable benefit of each Bank, Mortgages in form and substance acceptable to Agent granting first and prior Liens on the oil and gas properties and Related Assets which have been designated by Majority Banks. (c) Notwithstanding that, by the terms of any Mortgage or other security instrument securing repayment of the Obligations, Borrower is and will be assigning to the Agent for the ratable benefit of the Banks the "proceeds of runs" accruing to the property covered and to be covered by such instruments, so long as no Event of Default has occurred which is continuing, Borrower shall be permitted to continue to receive from the purchasers of production all of such "proceeds of runs" and the Agent shall not request payment of such "proceeds of runs"; provided, however, that upon the occurrence and during the continuation of an Event of Default, the Agent, at the request of the Required Banks, may exercise all rights and remedies granted to it thereby, including, without limitation, the right to receive directly from the purchasers of production, such "proceeds of runs". SECTION 5.2. Guaranty by Restricted Subsidiaries. Payment and performance of the Obligations will be fully guaranteed by each Restricted Subsidiary pursuant to a Guarantee executed by such Restricted Subsidiary in form and substance acceptable to Required Banks. SECTION 5.3. Legal Opinions; Corporate Matters. The Agent shall be permitted, at Borrower's expense, to obtain opinions of counsel in each jurisdiction in which the oil and gas properties and Related Assets which are required to be mortgaged pursuant to this Agreement are located, with respect to the validity, enforceability and actions necessary to perfect the liens and security interests created by the Mortgages covering such oil and gas properties and as to such other matters as the Banks shall deem necessary with respect to such Mortgages. Furthermore, simultaneously with the execution and delivery of any Mortgages required by Section 5.1, Borrower shall also deliver to the Agent (i) such resolutions, certificates and documents as the Agent or any Bank shall reasonably request relating to the existence of Borrower and its Subsidiaries, the corporate authority for the execution, delivery and performance of such Mortgages and such other matters relevant thereto as the Agent or any Bank may request, and (ii) an opinion of counsel satisfactory to the Agent with respect to the matters referred to in subsection (i) preceding. ARTICLE VI CONDITIONS TO BORROWINGS SECTION 6.1. Conditions to Restatement of Existing Credit Agreement. The restatement of the Existing Credit Agreement on the terms set forth herein is subject to the FIFTH RESTATED CREDIT AGREEMENT PAGE 51 58 satisfaction by Borrower, on or before the Effective Date, of each of the following conditions: (a) receipt by the Agent for the account of each Bank of a Committed Facility A Note and a Competitive Bid Facility A Note payable to the order of such Bank in the amount of such Bank's Facility A Commitment, duly executed by Borrower, dated the Effective Date; (b) receipt by the Agent for the account of each Bank of a Committed Facility B Note and a Competitive Bid Facility B Note payable to the order of such Bank in the amount of such Bank's Facility B Commitment, duly executed by Borrower, dated the Effective Date; (c) receipt by the Agent of an opinion of Peter Lorenzen, Esq., general counsel for Borrower, dated the Effective Date, favorably opining as to the enforceability of each of the Loan Papers and otherwise in form and substance satisfactory to the Agent and the Banks; (d) receipt by the Agent of an opinion of Gardere & Wynne, L.L.P., special counsel to the Agent, dated the Effective Date, in form and substance satisfactory to the Agent; (e) receipt by the Agent of a certificate signed by an Authorized Officer stating that (i) the representations and warranties contained in this Agreement are true and correct in all respects, and (ii) no Default has occurred and none is in existence. (f) receipt by the Agent of certain resolutions, certificates and other documents relating to the existence of Borrower and its respective Subsidiaries, the corporate authority for the execution, delivery and performance of this Agreement, the Notes and the other Loan Papers, and certain other matters relevant hereto, in form and substance satisfactory to the Agent, which resolutions, certificates and documents include resolutions of the directors of Borrower and each Restricted Subsidiary authorizing the execution, delivery and performance of the Loan Papers and certificates of incumbency for Borrower and each Restricted Subsidiary; (g) receipt by the Agent of the Certificate of Ownership Interests (herein so called) for Borrower substantially in the form of Exhibit E, duly executed and delivered by an Authorized Officer; (h) receipt by the Agent of amendments, duly executed by Borrower and the Restrictive Subsidiaries party thereto, in form and substance satisfactory to the Agent to each of the following security documents: FIFTH RESTATED CREDIT AGREEMENT PAGE 52 59 (i) Amended and Restated Security Agreement dated July 1, 1993 by and among Borrower, each Restricted Subsidiary and the Agent; (ii) Amended and Restated Collateral Assignment of Partnership Proceeds dated July 1, 1993 executed by SOCO Wattenberg Corporation in favor of the Agent; (iii) Amended and Restated Collateral Assignment of Contract Rights dated as of July 1, 1993 executed by Borrower in favor of the Agent; (iv) Amended and Restated Collateral Assignment of Note and Loans Documents dated as of July 1, 1993 executed by Borrower in favor of Agent; (v) Amended and Restated Collateral Assignment of Partnership Interests dated as of July 1, 1993 executed by Borrower in favor of the Agent; (vi) Amended and Restated Pledge Agreement dated July 1, 1993 by and between Borrower and Agent; (vii) Amended and Restated Pledge Agreement dated July 1, 1993 by and between SOCO Holdings, Inc. and the Agent; (i) receipt by the Agent of a Ratification and Amendment of the Restricted Subsidiary Guarantees duly executed by the Restricted Subsidiaries; and FIFTH RESTATED CREDIT AGREEMENT PAGE 53 60 (j) the Assignment referenced in the recitals to this Agreement shall have been duly executed and delivered by each Bank and the transactions contemplated thereby shall have been completed in accordance with the terms thereto. Upon satisfaction of each of the conditions set forth in this Section 6.1, Borrower and Agent shall execute a Certificate of Effectiveness (herein so called) substantially in the form of Exhibit A attached hereto. Upon the execution and delivery of the Certificate of Effectiveness, this Agreement shall automatically and completely be restated on the terms set forth herein without the necessity of any other action on the part of the Banks, the Agent or the Borrower. Until execution and delivery of the Certificate of Effectiveness, the Existing Credit Agreement shall remain in full force and effect in accordance with its terms. Each Bank hereby authorizes the Agent to execute the Certificate of Effectiveness on its behalf and acknowledges and agrees that the execution of the Certificate of Effectiveness by the Agent shall be binding on each Bank. SECTION 6.2.Conditions to Each Borrowing and Each Letter of Credit. The obligation of each Bank to make Loans on each Borrowing Date and the obligation of any Issuer to issue Letters of Credit on the date any Letter of Credit is to be issued is subject to the further satisfaction of the following conditions: 6.2.1 Conditions Precedent to Each Facility A Committed Borrowing and Letter of Credit. The obligation of each Bank to make Committed Facility A Loans and the obligation of any Issuer to issue any Letter of Credit hereunder is subject to the satisfaction of the following conditions precedent: (a) timely receipt by the Agent of a Request for Committed Loan(s); (b) immediately before and after giving effect to such Committed Borrowing or issuance of such Letter of Credit, no Default shall have occurred and be continuing and neither the making of any Facility A Loan in connection with such Committed Borrowing nor the issuance of such Letter of Credit shall not cause a Default; (c) the representations and warranties of Borrower contained in this Agreement shall be true and correct on and as of the date of such Borrowing or the issuance of such Letter of Credit; (d) following the making of such Committed Borrowing or the issuance of such Letter of Credit(s) and all other Borrowings to be made and/or Letters of Credit to be issued on the same day under this Agreement, (i) Borrower's Adjusted Consolidated Senior Debt shall not exceed the Facility A Borrowing Base, and (ii) Borrower's Consolidated Senior Debt shall not exceed the Total Borrowing Base. FIFTH RESTATED CREDIT AGREEMENT PAGE 54 61 (e) following the issuance of any Letter of Credit, the sum of the aggregate Third Party Letter Exposure, plusthe aggregate Letter of Credit Exposure shall not exceed 15% of the Facility A Borrowing Base. Each Committed Borrowing hereunder shall constitute a representation and warranty by Borrower that on the date of such Committed Borrowing the statements contained in subclauses (b), (c), (d) and (e) above are true. 6.2.2 Conditions Precedent to Each Committed Borrowing comprised of Facility B Loans. The obligation of each Bank to make Committed Facility B Loans hereunder is subject to the satisfaction of the following conditions precedent: (a) timely receipt by the Agent of a Request for Committed Loan(s); (b) immediately before and after giving effect to such Committed Borrowing, no Default shall have occurred and be continuing and the making of any Facility B Loan in connection with such Committed Borrowing shall not cause a Default; (c) the representations and warranties of Borrower contained in this Agreement shall be true and correct on and as of the date of such Borrowing; and (d) following the making of such Committed Borrowing comprised of Facility B Loans and all other Borrowings comprised of Facility B Loans to be made on the same day under this Agreement, (i) the aggregate outstanding principal amount of all Facility B Loans shall not exceed the Facility B Borrowing Base, (ii) Borrower's Consolidated Senior Debt shall not exceed the Total Borrowing Base, and (iii) Borrower's Adjusted Consolidated Senior Debt shall not exceed the Facility A Borrowing Base. Each Committed Borrowing hereunder shall constitute a representation and warranty by Borrower that on the date of such Committed Borrowing the statements contained in subclauses (b), (c) and (d) above are true. 6.2.3 Conditions Precedent to Each Competitive Bid Borrowing Comprised of Facility A Loans. The obligation of each Bank which is to make a Competitive Bid Facility A Loan on the occasion of a Competitive Bid Borrowing hereunder to make such Competitive Bid Facility A Loan as part of such Competitive Bid Borrowing is subject to the satisfaction of the following conditions precedent: FIFTH RESTATED CREDIT AGREEMENT PAGE 55 62 (a) timely receipt by the Agent of a Competitive Bid Request; (b) immediately before and after giving effect to such Competitive Bid Borrowing, no Default shall have occurred and be continuing and the making of any Competitive Bid Facility A Loan in connection with such Competitive Bid Borrowing shall not cause a Default; (c) the representations and warranties of Borrower contained in this Agreement shall be true and correct on and as of the date of such Competitive Bid Borrowing; and (d) following the making of such Competitive Bid Borrowing and all other Borrowings to be made and/or Letters of Credit to be issued on the same day under this Agreement, (i) Borrower's Adjusted Consolidated Senior Debt shall not exceed the Facility A Borrowing Base and (ii) Borrower's Consolidated Senior Debt shall not exceed the Total Borrowing Base. Each of the giving of the applicable Competitive Bid Request and the acceptance by Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a representation and warranty by Borrower that on the date of such Competitive Bid Borrowing the statements contained in subclauses (b), (c) and (d) above are true. 6.2.4 Conditions Precedent to Each Competitive Bid Borrowing Comprised of Facility B Loans. The obligation of each Bank which is to make a Competitive Bid Facility B Loan on the occasion of a Competitive Bid Borrowing hereunder to make such Competitive Bid Facility B Loan as part of such Competitive Bid Borrowing is subject to the satisfaction of the following conditions precedent: (a) timely receipt by the Agent of a Competitive Bid Request; (b) immediately before and after giving effect to such Competitive Bid Borrowing, no Default shall have occurred and be continuing and the making of any Competitive Bid Facility B Loan in connection with such Competitive Bid Borrowing shall not cause a Default; (c) the representations and warranties of Borrower contained in this Agreement shall be true and correct on and as of the date of such Competitive Bid Borrowing; and (d) following the making of such Competitive Bid Borrowing and all other Borrowings to be made and/or Letters of Credit to be issued on the same day under this Agreement, (i) Borrower's Adjusted FIFTH RESTATED CREDIT AGREEMENT PAGE 56 63 Consolidated Senior Debt shall not exceed the Facility A Borrowing Base, (ii) Borrower's Consolidated Senior Debt shall not exceed the Total Borrowing Base, and (iii) the Facility B Outstandings shall not exceed the Facility B Borrowing Base. Each of the giving of the applicable Competitive Bid Request and the acceptance by Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a representation and warranty by Borrower that on the date of such Competitive Bid Borrowing the statements contained in subclauses (b), (c) and (d) above are true. ARTICLE VII REPRESENTATIONS AND WARRANTIES Borrower represents and warrants that: SECTION 7.1. Corporate Existence and Power. Borrower (a) is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, (b) has all corporate power and all material governmental licenses, authorizations, consents and approvals required to carry on its businesses as now conducted and as proposed to be conducted, and (c) is duly qualified to transact business as foreign corporation in each jurisdiction where a failure to be so qualified could have a material adverse effect on its financial condition or operations. SECTION 7.2. Existence and Power (Subsidiaries). The Subsidiaries of Borrower (a) are corporations or partnerships duly incorporated or organized (as applicable) validly existing and in good standing under the laws of their respective states of incorporation or organization (as applicable), (b) have all corporate or partnership power (as applicable) and all material governmental licenses, authorizations, consents and approvals required to carry on their respective businesses as now conducted and as proposed to be conducted, and (c) are duly qualified to transact business as foreign corporations or foreign partnerships (as applicable) in each jurisdiction where a failure to be so qualified could have a material adverse effect on their respective financial conditions or operations. SECTION 7.3. Corporate, Partnership and Governmental Authorization; Contravention. The execution, delivery and performance of this Agreement, the Notes, the Restricted Subsidiary Guarantees, the Mortgages and the other Loan Papers (and all amendments to the foregoing contemplated hereby) by each Person purporting to execute the same are within such Person's corporate or partnership powers (as applicable), when executed will be duly authorized by all necessary corporate or partnership action (as applicable), require no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, any provision of applicable law or regulations (including, without limitation, the Margin Regulations) or of the partnership agreement, certificate of incorporation or bylaws (as applicable) of such FIFTH RESTATED CREDIT AGREEMENT PAGE 57 64 Persons or of any agreement, judgment, injunction, order, decree or other instrument binding upon such Person or result in the creation or imposition of any Lien on any asset of Borrower or any of its Subsidiaries except Liens securing the Notes. SECTION 7.4. Binding Effect. This Agreement constitutes a valid and binding agreement of Borrower; the Notes, the Restricted Subsidiary Guarantees, the Mortgages, and the other Loan Papers (and all amendments to the foregoing contemplated hereby) when executed and delivered in accordance with this Agreement, will constitute valid and binding obligations of Borrower and each Restricted Subsidiary executing the same; and each Loan Paper is enforceable in accordance with its terms except as (a) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors rights generally, and (b) the availability of equitable remedies may be limited by equitable principles of general applicability. SECTION 7.5. Financial Information. (a) The consolidated balance sheet of Borrower as of December 31, 1993, and the related consolidated statements of operations and cash flows for the fiscal year then ended, reported on by Arthur Anderson & Co. and copies of which have been delivered to each of the Banks, fairly present, in conformity with generally accepted accounting principles, the consolidated financial position of Borrower as of such date and its consolidated results of operations and cash flows for such fiscal year. (b) The most recent quarterly unaudited consolidated balance sheet of Borrower delivered to Banks, and the related unaudited consolidated statements of operations and cash flows for the portion of Borrower's fiscal year then ended, fairly present, in conformity with generally accepted accounting principles (subject to year end audit adjustments which will not materially alter the accuracy of the information set forth therein) applied on a basis consistent with the financial statements referred to in Section 7.5(a), the consolidated financial position of Borrower as of such date and its consolidated results of operations and cash flows for such portion of Borrower's fiscal year. (c) Except as disclosed in writing to the Banks prior to the execution and delivery of this Agreement, since the date of the most recent quarterly consolidated balance sheet and consolidated statements of operations and cash flow, there has been no material adverse change in the business, financial position, results of operations or prospects of Borrower or any of its Subsidiaries. SECTION 7.6. Litigation. Except for matters arising after the date of this Agreement which are promptly disclosed in writing to the Banks, there is no action, suit or proceeding pending against, or to the knowledge of Borrower, threatened against or affecting Borrower or any of its Subsidiaries before any court or arbitrator, any governmental body, agency or official in which there is a reasonable possibility of an adverse decision which could materially adversely affect the business, consolidated financial position or consolidated results of operations of Borrower or which could in any manner draw into question the validity of the Loan Papers. FIFTH RESTATED CREDIT AGREEMENT PAGE 58 65 SECTION 7.7. ERISA. With the exception of the Delmar Plan (to the extent Borrower completes the Delmar Acquisition), neither Borrower nor any of its Subsidiaries is a party to or bound by, or at any time prior to the date hereof, has been a party to, or bound by, any Plan. SECTION 7.8. Taxes and Filing of Tax Returns. Each of Borrower, its predecessors and their respective Subsidiaries has filed all material tax returns required to have been filed and has paid all Taxes shown to be due and payable on such returns, including interest and penalties, and all other Taxes which are payable by such party, to the extent the same have become due and payable other than Taxes with respect to which a failure to pay would not have a material adverse effect on Borrower or its Subsidiaries. Borrower does not know of any proposed material Tax assessment against it or any of its Subsidiaries, and all Tax liabilities of each of Borrower, its predecessors and their respective Subsidiaries are adequately provided for. Except as hereinafter disclosed in writing to Banks, no income tax liability of Borrower, any of its predecessors or any of their respective Subsidiaries has been asserted by the Internal Revenue Service for Taxes in excess of those already paid. SECTION 7.9. Title to Properties; Liens. Borrower and each of its Subsidiaries have good and indefeasible title to all material assets purported to be owned by them subject only to Permitted Encumbrances. Without limiting the foregoing, with the exception of oil and gas properties and Related Assets which are clearly identified as being owned by Persons other than Borrower and the Restricted Subsidiaries or which have been disposed of in compliance with Section 9.5 of the Existing Credit Agreement, Borrower and the Restricted Subsidiaries have good and indefeasible title to all material oil and gas properties and all material Related Assets which are the subject of the most recent Reserve Report and Related Asset Report provided to the Banks pursuant to the Existing Credit Agreement (except for Permitted Encumbrances). The Mortgages required by Section 5.1 hereof establish first and prior Liens on the properties and interests intended to be covered thereby subject only to Permitted Encumbrances. SECTION 7.10. Business; Compliance. Borrower and each of its Subsidiaries have performed and abided by all obligations required to be performed by them to the extent Borrower individually or Borrower and its Subsidiaries taken as a whole could be materially and adversely affected under any license, permit, order, authorization, grant, contract, agreement, or regulation to which any of them is a party or by which any of them or any of their assets are bound; provided that to the extent oil and gas properties owned by Borrower or its Subsidiaries are operated by operators other than Borrower or its Subsidiaries, Borrower has no knowledge that any such obligation remains unperformed and the appropriate Person has diligently enforced all contractual obligations of such operators to insure performance. SECTION 7.11. Licenses, Permits, Etc. Borrower and its Subsidiaries possess such valid franchises, certificates of convenience and necessity, operating rights, licenses, permits, consents, authorizations, exemptions and orders of tribunals, as are necessary to carry on FIFTH RESTATED CREDIT AGREEMENT PAGE 59 66 their business as now being conducted except to the extent a failure to obtain any such item would not have a material adverse effect on Borrower individually or on Borrower and its Subsidiaries taken as a whole; provided that to the extent oil and gas properties owned by Borrower and its Subsidiaries are operated by operators other than Borrower or its Subsidiaries, Borrower has no knowledge that possession of such items has not been obtained, and the appropriate Person has diligently enforced all contractual obligations of such operators to obtain such items. SECTION 7.12. Compliance with Law. The business and operations of Borrower and its Subsidiaries have been and are being conducted in accordance with all applicable laws, rules and regulations of all tribunals, other than laws, rules and regulations the violation of which could not (either individually or collectively) have a material adverse effect on Borrower's individual financial condition or operations or on the financial condition or operations of Borrower and its Subsidiaries taken as a whole; provided that to the extent oil and gas properties owned by Borrower and its Subsidiaries are operated by operators other than Borrower or its Subsidiaries, Borrower has no knowledge of non-compliance and the Appropriate Person has diligently enforced all contractual obligations of such operators to insure compliance. SECTION 7.13. Ownership Interests. The Reserve Reports and Related Asset Reports previously provided to Banks pursuant to the Existing Credit Agreement accurately reflect, and all Reserve Reports and Related Asset Reports hereafter delivered pursuant to this Agreement will reflect, in all material respects, the ownership interests in the oil and gas properties and Related Assets referred to therein (including all before and after payout calculations). SECTION 7.14. Full Disclosure. All information heretofore furnished by Borrower (or any other party in its behalf) to the Agent or any Bank for purposes of or in connection with this Agreement or any transaction contemplated hereby is, and all such information hereafter furnished by Borrower or in its behalf to the Agent or any Bank will be, true, complete and accurate in every material respect or based on reasonable estimates on the date as of which such information is stated or certified. Borrower has disclosed to the Banks in writing any and all facts (other than facts of general public knowledge) which might reasonably be expected to materially and adversely affect or might affect (to the extent Borrower can now reasonably foresee), the business, operations, prospects or condition, financial or otherwise, of Borrower or its Subsidiaries or the ability of Borrower to perform its obligations under this Agreement. SECTION 7.15. Subsidiaries. The Subsidiaries of Borrower are accurately reflected on Schedule 1 hereto. SECTION 7.16. Obligations of Unrestricted Subsidiaries. Except as expressly permitted by Sections 9.2 and 9.12, neither Borrower nor any Restricted Subsidiary has any obligation of any nature to any Unrestricted Subsidiary. Further, except as permitted by FIFTH RESTATED CREDIT AGREEMENT PAGE 60 67 Sections 9.2 and 9.12, neither Borrower nor any Restricted Subsidiary has any liability or obligation (whether arising by operation of law or otherwise) for any liability, Debt or other obligation of any Unrestricted Subsidiary. SECTION 7.17. Environmental Matters. No real or personal property owned or leased by Borrower or any Subsidiary of Borrower (including without limitation, Borrower's and its Subsidiaries oil and gas properties and Related Assets) and no operations conducted thereon, and to Borrower's knowledge, no operations of any prior owner, lessee or operator of any such properties, is or has been in violation of any Applicable Environmental Law other than violations which individually and in the aggregate will not have a material adverse effect on Borrower and its Subsidiaries taken as a whole. Neither Borrower, and Subsidiary of Borrower nor any such property or operation is the subject of any existing, pending or, to Borrower's knowledge, threatened action, suit, investigation, inquiry or preceding with respect to Applicable Environmental Laws which could, individually or in the aggregate, have a material adverse effect on Borrower and its Subsidiaries taken as a whole. All notices, permits, licenses, and similar authorizations, if any, required to be obtained or filed in connection with the ownership or operation of any and all real and personal property owned, leased or operated by Borrower or any of its Subsidiaries, including, without limitation, notices, licenses, permits and authorizations required in connection with any past or present treatment, storage, disposal, or release of hazardous substances, petroleums, or solid waste into the environment, have been duly obtained or filed except to the extent the failure to obtain or file such notices, licenses, permits and authorizations would not have a material adverse effect on Borrower and its Subsidiaries taken as a whole. To Borrower's knowledge, all hazardous substances, if any, generated at any and all real and personal property owned, leased or operated by Borrower or any of its Subsidiaries have been transported, treated, and disposed of only by carriers maintaining valid permits under RCRA and any other Applicable Environmental Laws. There has been no release or threatened release of any quantity of any hazardous substances or petroleum on, to or from any real or personal property owned, leased, or operated by Borrower or any Subsidiary which was not in compliance with Applicable Environmental Laws other than releases which would not, individually or in the aggregate, have a material adverse effect on Borrower and its Subsidiaries taken as a whole. Neither Borrower nor any Subsidiary has any contingent liability in connection with any release or threatened release of any hazardous substance, petroleum, or solid waste into the environment which could have a material adverse effect on Borrower and its Subsidiaries taken as a whole. ARTICLE VIII AFFIRMATIVE COVENANTS Borrower agrees that, so long as any Bank has any commitment to lend or participate in Letter of Credit Exposure hereunder or any amount payable under any Note remains unpaid or any Letter of Credit remains outstanding: FIFTH RESTATED CREDIT AGREEMENT PAGE 61 68 SECTION 8.1. Information. Borrower will deliver, or cause to be delivered, to each of the Banks: (a) as soon as available and in any event within ninety (90) days after the end of each fiscal year of Borrower, consolidated and consolidating balance sheets of Borrower as of the end of such fiscal year and the related consolidated and consolidating statements of income and changes in financial position for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported by Borrower in accordance with generally accepted accounting principles and audited by Arthur Anderson & Co. or other independent public accountants of nationally recognized standing acceptable to the Agent; (b) (i) as soon as available and in any event within forty-five (45) days after the end of each of the first three (3) quarters of each fiscal year of Borrower, consolidated and consolidating balance sheets of Borrower as of the end of such quarter and the related consolidated and consolidating statements of income and changes in financial position for such quarter and for the portion of Borrower's fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of Borrower's previous fiscal year, and (ii) as soon as available, and in any event, within forty-five (45) days after the end of each quarter of each fiscal year of DJ Partners, L.P., balance sheets of DJ Partners, L.P. as of the end of such quarter and related statements of income and changes in financial position for such quarter and for the portion of DJ Partners, L.P.'s fiscal year ending at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter with the corresponding portion of DJ Partners, L.P.'s previous fiscal year; provided, that so long as no Default or Event of Default has occurred, Borrower will not be required to deliver any financial statement or other financial information regarding DJ Partners, L.P. which is not required to be delivered to State Street Bank and Trust Company pursuant to the Partnership Agreement. All financial statements delivered pursuant to this Section 8.1(b) shall be certified as to fairness of presentation, generally accepted accounting principles and consistency by the chief financial officer of the chief accounting officer of Borrower; (c) simultaneously with the delivery of each set of financial statements referred to in Sections 8.1(a) and (b), a certificate of an Authorized Officer, (i) setting forth in reasonable detail the calculations required to establish whether Borrower was in compliance with the requirements of Article X on the date of such financial statements, (ii) stating whether there exists on the date of such certificate any Default and, if any Default then exists, setting forth the details thereof and the action which Borrower is taking or proposes to take with respect thereto and (iii) stating whether or not such financial statements fairly reflect the business and financial condition of Borrower as of the date of the delivery of such financial statements; (d) no later than March 15, and September 15 of each year, Borrower shall provide the Agent reports of production volumes, revenue, expenses and product prices for FIFTH RESTATED CREDIT AGREEMENT PAGE 62 69 all oil and gas properties owned by Borrower, its Restricted Subsidiaries and DJ Partners, L.P. with a Recognized Value of $100,000 or more (or $50,000 or more in the case of SWAT or DJ Partners, L.P.) (determined on a pretax bases in accordance with Financial Accounting Standards Board Statement 69) for the periods of six (6) months ending the preceding December 31, and June 30, respectively. Such reports shall be prepared on a cash basis and shall be reported on a well by well, lease by lease or field by field basis or on such other basis for which such properties are normally reported in Borrower's ordinary course of business. (e) immediately upon any Authorized Officer becoming aware of the occurrence of any Default, including, without limitation, a Default under Article X, a certificate of an Authorized Officer setting forth the details thereof and the action which Borrower is taking or proposes to take with respect thereto; (f) promptly upon the mailing thereof to the stockholders of Borrower generally, copies of all financial statements, reports and proxy statements so mailed; (g) promptly upon the filing thereof, copies of all final registration statements (other than the exhibits thereto and any registration statements on Form S-8 or its equivalent), post effective amendments thereto and annual, quarterly or special reports which Borrower shall have filed with the Securities and Exchange Commission; (h) promptly notify the Banks (i) of any material adverse change in the financial condition of Borrower, or (ii) of the occurrence of any acceleration of the maturity of any Debt owing by Borrower or any of its Subsidiaries or any default under any indenture, mortgage, agreement, contract or other instrument to which any of them is a party or by which any of them or any of their properties is bound, if such default or acceleration might have a material adverse effect upon their financial condition; (i) on or before sixty (60) days following the expiration of each month, reports of net production volume, prices received, severance taxes and capital and operating expenditures and a calculation of net operating income for each oil and gas property owned by Borrower, its Restricted Subsidiaries and DJ Partners, L.P. Such reports shall be prepared on a well by well, lease by lease or field by field basis or on such other basis for which such properties are normally reported in Borrower's ordinary course of business. Furthermore, on or before sixty (60) days following the expiration of each month, Borrower shall provide to each of the Banks (a) a written comparison in form and substance acceptable to Required Banks of the actual financial performance of DJ Partners, L.P. for each month to the Project Model, and (b) a report of all Distributions during such month by DJ Partners, L.P. to Borrower and SWAT, including all payments made under the Intercompany Loan, all fees paid under the Management Agreement and all Distributions to SWAT. Such report shall designate what portion of such payments, if any, are principal payments on the Intercompany Loan which are subject to being readvanced under such loan. FIFTH RESTATED CREDIT AGREEMENT PAGE 63 70 (j) immediately upon receipt of the same, a copy of any notice received by Borrower of the occurrence of any Event of Default under and as defined in the Securities Purchase Agreement, the First Indenture, the Second Indenture or the Third Indenture or any event which with notice, lapse of time or both, would, unless cured or waived, become such an Event of Default; (k) promptly upon receipt of same, any notice or other information received by Borrower or any Subsidiary of Borrower indicating any potential, actual or alleged (i) non-compliance with or violation of the requirements of any Applicable Environmental Law which could result in liability to Borrower or any Subsidiary for fines, clean up or any other remediation obligations or any other liability in excess of $250,000 in the aggregate; (ii) release or threatened release of any toxic or hazardous waste, substance, or constituent, or other substance into the environment which release would impose on Borrower or any Subsidiary a duty to report to a governmental authority or to pay cleanup costs or to take remedial action under any Applicable Environmental Law which could result in liability to Borrower or any Subsidiary for fines, clean up and other remediation obligations or any other liability in excess of $250,000 in the aggregate; or (iii) the existence of any Lien arising under any Applicable Environmental Law securing any obligation to pay fines, clean up or other remediation costs or any other liability in excess of $250,000 in the aggregate. Without limiting the foregoing, Borrower shall provide to Banks promptly upon receipt of same copies of all environmental consultants or engineers reports received by Borrower or any Subsidiary of Borrower which would render the representation and warranty contained in Section 7.17 untrue or inaccurate in any respect. (l) In the event any notification is provided by Borrower to any Bank or Agent pursuant to Section 8.1(k) hereof or Agent or any Bank otherwise learns of any event or condition under which any such notice would be required, then, upon request of Required Banks, Borrower shall, within 90 days of such request, cause to be furnished to each Bank a report by an environmental consulting firm acceptable to Agent and Required Banks, stating that a review of such event, condition or circumstance has been undertaken (the scope of which shall be acceptable to Agent and Required Banks) and detailing the findings, conclusions, and recommendations of such consultant. Borrower shall bear all expenses and costs associated with such review and updates thereof, as well as all remediation or curative action recommended by any such environmental consultant. (m) from time to time such additional information regarding the financial position or business of Borrower and its Subsidiaries as the Agent, at the request of any Bank, may reasonably request. SECTION 8.2. Business of Borrower. The primary business of Borrower and its Subsidiaries will continue to be the acquisition, exploration for, development, production, transportation, processing and marketing of liquid or gaseous hydrocarbons and accompanying elements and related businesses. FIFTH RESTATED CREDIT AGREEMENT PAGE 64 71 SECTION 8.3. Maintenance of Existence. Borrower, shall, and shall cause each Restricted Subsidiary to, at all times (a) maintain its corporate existence in its state of incorporation except to the extent any Restricted Subsidiary ceases to be in existence as a result of a merger or consolidation expressly permitted pursuant to Section 9.4, and (b) maintain its good standing and qualification to transact business in all jurisdictions where the failure to maintain good standing or qualification to transact business could have a material adverse effect on the financial condition or operations of Borrower individually or Borrower and its Subsidiaries taken as a whole. SECTION 8.4. Additional Title Data. (a) Borrower shall, upon the reasonable request of the Required Banks, cause to be delivered to the Agent such title opinions and other information in its possession, control or direction regarding title to the oil and gas properties owned by Borrower, its Restricted Subsidiaries and DJ Partners, L.P. and Related Assets and relative priority of the Mortgages as are appropriate to determine the status thereof. (b) At such time as Borrower and the Restricted Subsidiaries are required to grant Mortgages on their oil and gas properties and Related Assets under Section 5.1(b), Borrower shall, upon the request of the Required Banks, deliver to the Agent title opinions and title insurance policies covering the oil and gas properties and the Related Assets which are the subject of Mortgages required pursuant to Section 5.1(b) and other information regarding title to such oil and gas properties and Related Assets as they shall reasonably request, all in form and substance and from such attorneys as are acceptable to the Agent. SECTION 8.5. Right of Inspection. Borrower will permit and will cause each of its Subsidiaries to permit any officer, employee or agent of the Agent or any of the Banks to visit and inspect any of the assets of Borrower and its Subsidiaries, examine Borrower's and is Subsidiaries' books of record and accounts, take copies and extracts therefrom, and discuss the affairs, finances and accounts of Borrower and its Subsidiaries with Borrower's and its Subsidiaries' officers, accountants and auditors, all at such reasonable times and as often as the Agent or any of the Banks may desire, all at the expense of Borrower. Banks covenant and agree to preserve the confidentiality of any information with respect to which Borrower, or any of its Subsidiaries have an obligation of confidentiality to a third party (to the extent such obligation has been disclosed to Banks), except to the extent Banks are required to disclose such information pursuant to any applicable law, rule or regulation of any governmental body or pursuant to the order of any court of competent jurisdiction. SECTION 8.6. Maintenance of Insurance. Borrower will, and will cause each of its Subsidiaries to (and will use its best efforts to cause all operators of oil and gas properties owned by Borrower and its Subsidiaries and Related Assets to) at all times maintain or cause to be maintained insurance covering such risks as are customarily carried by businesses similarly situated including, without limitation, the following: (a) workmen's compensation insurance; (b) employer's liability insurance; (c) comprehensive general public liability and property damage insurance in respect of all activities in which Borrower or any FIFTH RESTATED CREDIT AGREEMENT PAGE 65 72 of its Subsidiaries might incur personal liability for the death or injury of an employee or third person, or damage to or destruction of another's property; (d) insurance against loss or damage by fire, lightning, hail, tornado, explosion and other similar risk; (e) reservoir damage insurance; and (f) comprehensive automobile liability insurance. SECTION 8.7. Maintenance of Security. When and to the extent required by Section 5.1, Borrower will execute and deliver to the Agent for the ratable benefit of the Banks all mortgages, deeds of trust, security agreements, financing statements, assignments and such other documents and instruments (including division and transfer orders), and supplements and amendments thereto, and take such other actions as the Required Banks reasonably deem necessary in order to create and maintain valid, enforceable and first priority perfected Liens on all assets of Borrower required pursuant to Section 5.1. Furthermore, upon any consolidation or merger of any Subsidiary of Borrower permitted by Section 9.4, the Person which survives such merger or consolidation shall also execute and deliver such mortgages, deeds of trust, security agreements, financing statements and other documents as the Agent deems necessary to continue in force any Mortgages executed prior to such consolidation or merger pursuant to Section 5.1 by the parties subject to such consolidation or merger. SECTION 8.8. Payment of Taxes and Claims. Borrower will, and will cause each of its Subsidiaries to, pay (a) all Taxes imposed upon it or any of its assets or with respect to any of its franchises, business, income or profits before any material penalty or interest accrues thereon and (b) all material claims (including, without limitation, claims for labor, services, materials and supplies) for sums which have become due and payable and which by law have or might become a Lien (other than a Permitted Encumbrance) on any of its assets; provided, however, no payment of Taxes or claims shall be required if (i) the amount, applicability or validity thereof is currently being contested in good faith by appropriate action promptly initiated and diligently conducted in accordance with good business practices and no material part of the property or assets of Borrower or any of its Subsidiaries are subject to levy or execution, (ii) Borrower as and to the extent required in accordance with generally accepted accounting principles, shall have set aside on its books reserves (segregated to the extent required by generally accepted accounting practices) deemed by it to be adequate with respect thereto, and (iii) Borrower has notified the Agent of such circumstances, in detail satisfactory to the Agent. SECTION 8.9. Compliance with Laws and Documents. Borrower will and will cause each of its Subsidiaries to comply with all laws, their respective certificates of incorporation, bylaws, partnership agreements and similar organizational documents and all Material Agreements to which Borrower or any of its subsidiaries are a part, if a violation, alone or when combined with all other such violations, could have a material adverse effect on the financial condition or operations of Borrower individually or Borrower and its Subsidiaries taken as a whole. FIFTH RESTATED CREDIT AGREEMENT PAGE 66 73 SECTION 8.10. Operation of Properties and Equipment. (a) Borrower will, and will cause each of its Subsidiaries to, maintain, develop and operate their respective oil and gas properties and Related Assets in a good and workmanlike manner, and observe and comply with all of the terms and provisions, express or implied, of all oil and gas leases relating to such properties so long as such oil and gas leases are capable of producing hydrocarbons and accompanying elements in paying quantities, to the extent that the failure to so observe and comply could have a material adverse effect on the financial condition or operations of Borrower individually or Borrower and its Subsidiaries taken as a whole. (b) Borrower will, and will cause each of its Subsidiaries to, comply in all respects with all contracts and agreements applicable to or relating to their respective oil and gas properties or the production and sale of hydrocarbons and accompanying elements therefrom, except to the extent a failure to so comply could not have a material adverse effect on the financial condition or operations of Borrower individually or Borrower and its Subsidiaries taken as a whole. (c) Borrower will, and will cause each of its Subsidiaries, at all times, to maintain, preserve and keep all operating equipment used with respect to the oil and gas properties of Borrower in proper repair, working order and condition, and make all necessary or appropriate repairs, renewals, replacements, additions and improvements thereto so that the efficiency of such operating equipment shall at all times be properly preserved and maintained, provided that no item of operating equipment need be so repaired, renewed, replaced, added to or improved, if Borrower shall in good faith determine that such action is not necessary or desirable for the continued efficient and profitable operation of the business of Borrower and its Subsidiaries. (d) With respect to the oil and gas properties of Borrower and its Subsidiaries which are operated by operators other than Borrower or one of its Subsidiaries, Borrower and its Subsidiaries shall not be obligated itself to perform any undertakings contemplated by the covenants and agreements contained in this Section 8.10(d) which are performable only by such operators and are beyond the control of Borrower, but shall be obligated to seek to enforce such operators' contractual obligations to maintain, develop and operate the oil and gas properties subject to such operating agreements. (e) Borrower shall not enter into any operating or management agreement with any third party other than a Subsidiary of Borrower or otherwise transfer management of the gas processing and transportation facilities owned by Borrower and located in Weld, Adams, and Morgan Counties, Colorado to any third party other than a Subsidiary of Borrower unless legally required to do so or such third party is approved by Required Banks, such approval to not be unreasonably withheld. SECTION 8.11. Additional Documents. Borrower will execute and deliver or cause to be executed and delivered such other and further instruments or documents as in the FIFTH RESTATED CREDIT AGREEMENT PAGE 67 74 judgment of the Agent may be required to better effectuate the transactions contemplated herein. SECTION 8.12. Environmental Law Compliance and Indemnity. Borrower will, and will cause each of its Subsidiaries to, comply in all material respects with all Applicable Environmental Laws, including, without limitation, (a) all licensing, permitting, notification and similar requirements of Applicable Environmental Laws, and (b) all provisions of Applicable Environmental Law regarding storage, discharge, release, transportation, treatment and disposal of hazardous substances, petroleum, solid waste or other contaminants. Borrower will, and will cause each of its Subsidiaries to, promptly pay and discharge when due all debts, claims, liabilities and obligations with respect to any clean-up or remediation measures necessary to comply with Applicable Environmental Laws. Borrower hereby indemnifies and agrees to defend and hold the Banks and their successors and assigns harmless from and against any and all claims, demands, causes of action, loss, damage, liabilities, costs and expenses (including reasonable attorneys' fees and court costs) of any and every kind or character, known or unknown, fixed or contingent, asserted against or incurred by any of the Banks at any time and from time to time including, without limitation, those asserted or arising subsequent to the payment or other satisfaction of the Loans, by reason of or arising out of the ownership, construction, occupancy, operation, use and maintenance of any of the collateral for the Loans, including matters arising out of the negligence of any of the Banks; provided, however, this indemnity shall not apply with respect to matters caused by or arising out of (i) the gross negligence or willful misconduct of the Banks (it being the express intention hereby that the Banks shall be indemnified from the consequences of their negligence); and (ii) the construction, occupancy, operation, use and maintenance of the collateral for the Loans by any owner, lessee or party in possession of the collateral for the Loans subsequent to the ownership of the collateral for the Loans by Borrower or its Subsidiaries (as applicable), provided further, however, that this subclause (ii) shall not exclude from the foregoing indemnity and agreement, liability, claims, demands, causes of action, loss, damage, costs and expenses imposed by reason of the ownership of the collateral for the Loans by the Banks after purchase by the Banks at any foreclosure sale or transfer in lieu thereof from Borrower or any Restricted Subsidiary in partial or entire satisfaction of the Loans (unless the same shall be solely attributable to the subsequent use of the collateral by the Banks during their ownership thereof). The foregoing indemnity and agreement applies to the violation of any Applicable Environmental Law prior to the payment or other satisfaction of the Loans and any act, omission, event or circumstance existing or occurring on or about the collateral for the Loans (including without limitation the presence on the collateral for the Loans or release from the collateral for the Loans of asbestos or other hazardous substances or solid waste disposed of or otherwise present in or released prior to the payment or other satisfaction of the Loans). It shall not be a defense to the covenant of Borrower to indemnify that the act, omission, event or circumstance did not constitute a violation of any Applicable Environmental Law at the time of its existence or occurrence. The provisions of this Section 8.12 shall survive the repayment of the Loans and shall continue thereafter in full force and effect. In the event of the transfer of the Loans or any portion thereof, the Banks or any prior holder of FIFTH RESTATED CREDIT AGREEMENT PAGE 68 75 the Loans and any participants shall continue to be benefitted by this indemnity and agreement with respect to the period of such holding of the Loans. SECTION 8.13. Mortgage Amendments. On or before July 31, 1994, Borrower shall deliver to the Agent the following: (a) amendments duly executed by DJ Partners, L.P. and the Agent with respect to all Mortgages securing the Obligations under the Existing Credit Agreement encumbering all oil and gas properties and all Related Assets owned by DJ Partners, L.P., which amendments, among other things, (i) amend such Mortgages to secure the Obligations under this Agreement, and (ii) carry forward (but do not extinguish) all Liens created by such Mortgages. All such amendments will be properly recorded promptly following the execution of this Agreement. (b) confirmations of prior opinions of counsel to Agent in each jurisdiction in which DJ Partners, L.P. owns oil and gas properties or Related Assets with respect to (i) the validity and enforceability of the Mortgages (as amended) referred to in Section 8.13(a), (ii) the location and procedures for filing such Mortgages and amendments and other steps necessary to insure proper perfection and priority of the Liens created thereby, and (iii) certain other matters. ARTICLE IX NEGATIVE COVENANTS Borrower agrees that, so long as any Bank has any commitment to lend or participate in Letter of Credit Exposure hereunder or any amount payable under any Note remains unpaid or any Letter of Credit remains outstanding: SECTION 9.1. Total Additional Debt of Borrower, Restricted Subsidiaries and DJ Partners, L.P. Neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P. will incur any Debt other than (a) Debt secured by Permitted Encumbrances described in subpart (1) of the definition of Permitted Encumbrances, (b) Nonrecourse Debt, (c) Third Party Letters of Credit permitted by Section 2.1 hereof, (d) the Loans, (e) the Intercompany Loan, (f) margin accounts with brokers and dealers relating to Margin Stock and other securities, and (g) Guarantees of Debt and other liabilities of other Restricted Subsidiaries and of Borrower provided that such Debt and other liabilities are permitted pursuant to this Agreement; provided, that the Debt permitted pursuant to Section 9.1(a) and (b) shall not exceed $15,000,000 in the aggregate; provided further that the Third Party Letter of Credit Exposure under Cash Secured Third Party Letters of Credit shall not exceed at any time five percent (5%) of the Borrowing Base in effect at such time; and provided further, that the maximum aggregate outstanding balance of Borrower's and its Subsidiaries' margin accounts shall not exceed one percent (1%) of Borrower's Consolidated Tangible Net Worth at any time. In addition to the foregoing, Borrower may issue the First Convertible Debentures FIFTH RESTATED CREDIT AGREEMENT PAGE 69 76 in exchange for the First Preferred Stock, and Borrower may issue the Second Convertible Debentures in exchange for the Second Preferred Stock; provided, that Borrower shall give each Bank ninety (90) days advance notice of Borrower's intention to complete any exchange of Convertible Debentures for Preferred Stock, and if Majority banks require that Borrower and the Restricted Subsidiaries grant Liens on their oil and gas properties and Related Assets pursuant to Section 5.1(b), Borrower will not complete such exchange until all requisite Mortgages have been executed and delivered by Borrower and the Restricted Subsidiaries and Agent has notified Borrower that all such Mortgages have been filed of record and that all other steps necessary to perfect (and confirm perfection) of the Liens created by such Mortgages have been taken. SECTION 9.2. Restricted Payments. Neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P. will declare or make any Restricted Payment; provided, that, so long as no Default or Event of Default, Borrowing Base Deficiency or noncompliance with Section 10.4 exists (without giving effect to the cure periods provided by Section 4.4 or 10.4), and provided further that no Default or Event of Default would result from such Restricted Payment, Borrower, Restricted Subsidiaries and DJ Partners, L.P. may (a) make Restricted Payments in an aggregate amount (measured cumulatively from March 31, 1993) not to exceed the sum of the following (i) $10,000,000, plus (ii) the net cash proceeds to Borrower from all equity offerings completed by Borrower after March 31, 1993, plus (iii) all cash Distributions actually received by Borrower or any Restricted Subsidiary from Unrestricted Subsidiaries after March 31, 1993, plus (iv) fifty percent (50%) of Borrower's Consolidated Cash Flow earned after March 31, 1993, (b) declare and make a Qualified Redemption of the First Issue, (c) declare and make a Qualified Redemption of the Second Issue, (d) declare and make a Qualified Redemption of the Third Convertible Debentures, (e) issue the First Convertible Debentures in exchange for the First Preferred Stock, and (f) issue the Second Convertible Debentures in exchange for the Second Preferred Stock. SECTION 9.3. Negative Pledge. Neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P. will create, assume or suffer to exist any Lien on any asset which is individually or when aggregated with other assets subject to any Lien (other than Permitted Encumbrances) material, whether now owned or hereafter acquired by any of them, except Permitted Encumbrances. SECTION 9.4. Consolidations and Mergers. Neither Borrower nor any of its Subsidiaries will consolidate or merge with or into any other Person; provided, that so long as no Default or Event of Default exists or will result (a) Borrower may merge or consolidate with another Person so long as Borrower is the surviving corporation, (b) any Restricted Subsidiary may merge or consolidate with or into another Restricted Subsidiary, (c) any Unrestricted Subsidiary may merge with or into another Unrestricted Subsidiary, (d) any Unrestricted Subsidiary may merge with any other Person other than Restricted Subsidiary so long as such Unrestricted Subsidiary is the surviving corporation, and (e) any Restricted Subsidiary may merge with any other Person so long as such Restricted Subsidiary is the surviving corporation. FIFTH RESTATED CREDIT AGREEMENT PAGE 70 77 SECTION 9.5. Asset Dispositions. Except as herein provided, neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P. shall sell, lease, abandon or otherwise transfer any of its assets to any other Person other than pursuant to an Exempt Transfer. Borrower, the Restricted Subsidiaries and DJ Partners, L.P. shall be permitted to sell or otherwise dispose of any asset other than (a) oil and gas properties, (b) Related Assets, (c) debt and equity securities issued by any Restricted Subsidiary, and (d) Other Borrowing Base Assets. Borrower, the Restricted Subsidiaries and DJ Partners, L.P. may sell oil and gas assets, Related Assets and Other Borrowing Base Assets; provided that the aggregate value of all oil and gas properties, Related Assets and Other Borrowing Base Assets sold by Borrower, the Restricted Subsidiaries and DJ Partners, L.P. in transactions which are not Exempt Transfers during any six month period between Periodic Determinations shall not exceed the sum of (x) the greater of (i) $10,000,000, or (ii) five percent (5%) of the Recognized Value of all oil and gas properties and Related Assets held by Borrower and the Restricted Subsidiaries as reflected on the most recent Reserve Report and Related Asset Report delivered to the Banks prior to the commencement of such six (6) month period, plus (y) the Recognized Value of all proved, developed, producing oil and gas reserves acquired by Borrower and Restricted Subsidiaries during such six month period. The Recognized Value of all proved, developed, producing reserves acquired by Borrower during any six month period shall be determined by Borrower; provided that such value shall be subject to verification and adjustment by Required Banks if the value asserted by Borrower exceeds $5,000,000. For purposes of determining compliance with this Section 9.5, the value of oil and gas properties, Related Assets and other Borrowing Base Assets sold for cash shall be the sales price of the properties sold. The value of oil and gas properties sold for consideration other than cash shall be the amount which should be reflected on Borrower's books in accordance with GAAP as "proceeds from the sale of oil and gas properties" or "proceeds from the sale of properties". Farmouts of undeveloped properties will not be considered sales or dispositions for purposes of this Section 9.5 until the farmee earns a right to an assignment of the underlying property. SECTION 9.6. Amendments to Material Documents. Neither Borrower nor any Restricted Subsidiary shall enter into or permit any modification or amendment of, or waive any material right or obligation of any Person under, (a) its certificate or articles of incorporation, bylaws or other organizational document other than amendments, modifications and waivers which are not, individually or in the aggregate, material, (b) the First Preferred Stock Designation, the Second Preferred Stock Designation, the First Indenture, the Second Indenture, the Third Indenture or the Convertible Debentures, or (c) the Partnership Agreement, the Intercompany Loan Documents, the Management Agreement, or any other related document (collectively, the "DJ Documents") other than amendments, modifications and waivers which are not, individually or in the aggregate material; provided that neither Borrower nor any Restricted Subsidiary shall enter into any immaterial amendment, modification or waiver of any DJ Documents unless Borrower shall have provided Banks written notice not less than fifteen (15) days prior to the date Borrower or its Restricted Subsidiary intends to enter into such amendment, modification or waiver specifying in detail the subject thereof. FIFTH RESTATED CREDIT AGREEMENT PAGE 71 78 SECTION 9.7. Use of Proceeds. The proceeds of Borrowings will not be used for any purpose other than (a) working capital, (b) to finance the acquisition, exploration and development of oil and gas properties and Related Assets and the transportation, processing and marketing of hydrocarbons by Borrower and Restricted Subsidiaries, (c) Restricted Payments permitted pursuant to Section 9.2 and Investments permitted pursuant to Section 9.8 provided, that none of such proceeds (including, without limitation, proceeds of Letters of Credit issued hereunder) will be used, directly or indirectly, for the purpose, whether immediate, incidental or ultimate, of purchasing or carrying any Margin Stock, and none of such proceeds will be used in violation of applicable law (including, without limitation, the Margin Regulations). SECTION 9.8. Investments. Neither Borrower, any Restricted Subsidiary nor DJ Partners, L.P. will, directly or indirectly, make any Investment other than Permitted Investments. Except as permitted pursuant to that certain Letter Agreement dated September 14, 1993 by and among Borrower and the Banks parties to the existing Credit Agreement (which shall be binding on all Banks under this Agreement), Borrower shall not, and shall not permit any of its Subsidiaries to individually or in the aggregate acquire or offer to acquire (or in concert with any other Person acquire or offer to acquire) more than four and nine-tenths percent (4.9%) of any of the securities of any Person other than pursuant to negotiated transactions pursuant to which Borrower acquires (or will acquire) equity securities of entities which are not subject to the reporting requirements of the Securities and Exchange Act of 1934. During the existence of a Default, a Borrowing Base Deficiency or a violation of Section 10.4 (regardless of whether any applicable cure periods provided by Sections 4.5 and 10.4 have expired); neither Borrower nor any of its Subsidiaries will acquire or offer to acquire (or in connection with any other Person acquire or offer to acquire) any securities of any Person. SECTION 9.9. Transactions with Affiliates. Borrower will not, and will not permit any Subsidiary, to engage in any material transaction with an affiliated Person unless such transaction is generally as favorable to Borrower or such Subsidiary as could be obtained in an arm's length transaction with an unaffiliated Person in accordance with prevailing industry customs and practices. SECTION 9.10. Plans. With the exception of the Delmar Plan (to the extent Borrower completes the Delmar Acquisition), neither Borrower nor any of its Subsidiaries shall create, adopt or become bound by any Plan. In the event Borrower completes the Delmar Acquisition, Borrower shall (a) immediately notify the Banks of the occurrence of any Reportable Event (as defined in Section 4043 of ERISA) with respect to the Delmar Plan, (b) cause the Delmar Plan to at all times meet the minimum funding requirements contained in Section 412 of the Code, (c) cause Delmar to take all steps required to maintain the qualification of the Delmar Plan under Section 401(a) of the Code and the tax exempt status of the related trust under Section 501(a) of the Code, (d) not permit Delmar to materially increase the benefits provided under the Delmar Plan, and (e) not permit FIFTH RESTATED CREDIT AGREEMENT PAGE 72 79 Delmar to terminate the Delmar Plan if such termination would result in liability to Borrower or any of its Subsidiaries (including Delmar) of $1,000,000 or more. SECTION 9.11. Hedge Transactions. Neither Borrower, any of its Restricted Subsidiaries nor DJ Partners, L.P. shall enter into Hedge Transactions with the exception that Borrower, its Restricted Subsidiaries and DJ Partners, L.P. may enter into Hedge Transactions as long as the aggregate maximum amount of hydrocarbons which are the subject of Hedge Transactions in existence at any time shall not exceed seventy-five (75%) of Borrower's, the Restricted Subsidiaries' and DJ Partners, L.P.'s anticipated production from proved, developed producing reserves during the term of existing Hedge Transactions. SECTION 9.12. Obligations of Unrestricted Subsidiaries. Except as expressly permitted by Section 9.2 (including, to the extent permitted by Section 9.2, Borrower's liability and obligations under the OPIC Guaranty), neither Borrower, any of its Restricted Subsidiaries nor DJ Partners, L.P. shall incur any liability or obligation to any Unrestricted Subsidiary of any nature, or have any liability (whether by operation of law or otherwise) for any liability, Debt or obligation of any Unrestricted Subsidiary; provided, however, that nothing in this Section 9.12 shall prohibit SWAT from acting as the general partner of DJ Partners, L.P. ARTICLE X FINANCIAL COVENANTS Borrower agrees that, so long as any Bank has any commitment to lend or participate in Letter of Credit Exposure hereunder or any amount payable under any Note remains unpaid or any Letter of Credit remains outstanding: SECTION 10.1. Consolidated Working Capital of Borrower. Borrower will not permit the amount by which its Consolidated Current Assets exceeds its Consolidated Current Liabilities as of the end of any fiscal quarter to be less than $1,000,000. SECTION 10.2. Current Ratio of Borrower. Borrower will not permit the ratio of its Consolidated Current Assets to its Consolidated Current Liabilities as of the end of any fiscal quarter to be less than 1.0 to 1.0. SECTION 10.3. Ratio of Consolidated Total Debt and Consolidated Senior Debt to Consolidated Tangible Net Worth of Borrower. Borrower will not permit its consolidated total Debt as of the end of any fiscal quarter to exceed one hundred fifty percent (150%) of its Consolidated Tangible Net Worth as of the end of such fiscal quarter. Borrower will not permit its Consolidated Senior Debt as of the end of any fiscal quarter to exceed one hundred twenty percent (120%) of its Consolidated Tangible Net Worth as of the end of such fiscal quarter. FIFTH RESTATED CREDIT AGREEMENT PAGE 73 80 SECTION 10.4. Adjusted Consolidated Cash Flow Coverage of Borrower. If, as of the end of any fiscal quarter the aggregate Adjusted Consolidated Cash Flow of Borrower for (a) the fiscal quarter then ended is less than five percent (5%) of Borrower's Consolidated Total Covered Debt as of the end of such fiscal quarter exclusive of such portion of Consolidated Total Covered Debt with respect to which Exempt Subsidiaries are the only obligors, or (b) the four fiscal quarters then ended is less than twenty five percent (25%) of Borrower's Consolidated Total Covered Debt as of the end of such fiscal quarter exclusive of such portion of Consolidated Total Covered Debt with respect to which Exempt Subsidiaries are the only obligors, then, in either event, Borrower will, prior to the expiration of the applicable Special Cash Flow Cure Period, make a principal payment on the outstanding Loans in an amount such that, if the principal so paid had not been outstanding at the end of such fiscal quarter, the percentage set forth herein would have been satisfied for such fiscal quarter. ARTICLE XI DEFAULTS SECTION 11.1. Events of Default. If one or more of the following events (collectively "Events of Default" and individually an "Event of Default") shall have occurred and be continuing: (a) Borrower shall fail to pay when due any principal of or interest on any Note, any fees or any other amount payable hereunder and such failure shall continue for a period of five (5) days; (b) Borrower shall fail to observe or perform any covenant or agreement contained in Article IX or X and, as to Section 10.1 through and including 10.3 only, the continuance of such failure for a period not to exceed thirty (30) consecutive days (with respect to the first such failure within a given calendar year) and five (5) days (with respect to the second and third such failures within a given calendar year); provided that no grace period shall apply after the third such failure in any calendar year; (c) Borrower, any Restricted Subsidiary or DJ Partners, L.P. shall fail to observe or perform any covenant or agreement contained in this Agreement or the other Loan Papers (other than those covered by Sections 11.1(a) and (b)) for thirty (30) days after written notice thereof has been given to Borrower by the Agent at the request of any Bank, provided, that, as to Defaults under Section 8.1(e) and (h) Borrower shall not be entitled to more than one (1) notice during each calendar year, and as to each other type of Default, Borrower shall not be entitled to more than two (2) notices during any calendar year. (d) Borrower shall fail to cause the financial statements described in Section 8.1(a) to be accompanied by the opinion without qualification (except for qualifications required by changes in accounting methods with which Borrower's auditors concur) of the accountants preparing such opinion, that such financial statements were FIFTH RESTATED CREDIT AGREEMENT PAGE 74 81 prepared in accordance with generally accepted accounting principles and fairly present the consolidated financial position and results of operations of Borrower; (e) any representation, warranty, certification or statement made or deemed to have been made by Borrower in this Agreement or by Borrower or any other Person on behalf of Borrower in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect in any material respect when made; (f) Borrower or any of its Subsidiaries shall fail or pay any Material Debt at maturity or any event or condition (i) shall occur which results in the acceleration of the maturity of any Material Debt of Borrower or any of its Subsidiaries, or (ii) shall occur and continue for a period of thirty (30) days (or such shorter cure period as is provided pursuant to the terms of such Material Debt) which entitles (or, with the giving of notice or lapse of time or both, would unless cured or waived, entitle) the holder of such Material Debt to accelerate the maturity thereof; (g) Borrower or any of its Subsidiaries shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; (h) an involuntary case or other proceeding shall be commenced against Borrower or any of its Subsidiaries seeking liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) days; or an order for relief shall be entered against Borrower or any of its Subsidiaries of any of them under the federal bankruptcy laws as now or hereafter in effect; (i) one (1) or more judgments or orders for the payment of money aggregating in excess of $1,000,000 shall be rendered against Borrower or any of its Subsidiaries and such judgment or order (i) shall continue unsatisfied and unstayed (unless bonded with a supersedeas bond at least equal to such judgment or order) for a period of thirty (30) days or (ii) is not fully paid and satisfied at least ten (10) days prior to the date on which any of its assets may be lawfully sold to satisfy such judgment or order; FIFTH RESTATED CREDIT AGREEMENT PAGE 75 82 (j) one (1) or more judgments or orders for the payment of money aggregating in excess of the sum of (i) ten percent (10%) of the Total Borrowing Base then in effect, plus (ii) (A) the amount of such judgment which is covered by insurance to the satisfaction of the Agent and its counsel, and (B) any amounts which Borrower has deposited with the Agent to be held by the Agent as security for the payment of such judgment shall be rendered against Borrower or any of its Subsidiaries, whether or not otherwise bonded or stayed; or (k) any Mortgage or other security instrument (other than UCC-3 Continuation Statements) securing repayment of the Loans shall for any reason, except to the extent permitted by the terms thereof, cease to create a valid and perfected first and prior lien on any material collateral that is the subject thereof, or Borrower shall so state in writing, and such failure is not cured to the satisfaction of the Agent and its counsel within thirty (30) days after any Authorized Officer becomes aware of such failure, such thirty (30) day period may be extended for an additional thirty (30) days upon the Agent's determination that Borrower promptly commenced and is diligently attempting to cure the same; then, and in every such event, the Agent shall without presentment, notice or demand (unless expressly provided for herein) of any kind (including, without limitation, notice of intention to accelerate and acceleration), all of which are hereby waived, (a) if requested by the Required Banks, terminate the Commitments and they shall thereupon terminate, and (b) if requested by the Required Banks, take such other actions as may be permitted by the Loan Papers including, declaring the Notes (together with accrued interest thereon) to be, and the Notes shall thereupon become, immediately due and payable; provided that (c) in the case of any of the Events of Default specified in Section 11.1(g) or (h), without any notice to Borrower or any other act by the Agent or the Banks, the Commitments shall thereupon terminate and the Notes (together with accrued interest thereon) shall become immediately due and payable. ARTICLE XII THE AGENT SECTION 12.1. Appointment and Authorization. Each Bank irrevocably appoints and authorizes the Agent to take such action as agent on its behalf and to exercise such powers under this Agreement, the Notes and the other Loan Papers as are delegated to the Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto, provided that, as between and among the Banks, the Agent will not prosecute, settle or compromise any claim against Borrower or release or institute enforcement proceedings, except with the consent of the Required Banks. Each Bank and Borrower agree that the Agent is not a fiduciary for the Banks or for Borrower but simply is acting in the capacity described herein to alleviate administrative burdens for both FIFTH RESTATED CREDIT AGREEMENT PAGE 76 83 Borrower and the Banks and that the Agent has no duties or responsibilities to the Banks or Borrower except those expressly set forth herein. SECTION 12.2. The Agent and Affiliates. NationsBank of Texas, N.A. shall have the same rights and powers under this Agreement as any other Bank and may exercise or refrain from exercising the same as though it were not the Agent, and Wells Fargo Bank, N.A. and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with Borrower and its Subsidiaries or Affiliate of Borrower as if it were not the Agent hereunder. SECTION 12.3. Action by the Agent. The obligations of the Agent hereunder are only those expressly set forth herein. Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Default, except as expressly provided in Article XI. Notwithstanding the administrative authority delegated to the Agent, the Agent shall not without the prior written approval of all Banks cause or permit any modification of the Loan Papers pertaining to (a) the scheduled payment of principal, interest or fees in respect of the Loans including the Facility A Termination Date and/or the Facility B Termination Date, (b) the rate of interest applicable to the Loans or the amount of fees payable hereunder, (c) the release or substitution of collateral for the Loans other than releases required pursuant to sales of collateral which are expressly permitted under Section 9.5 and releases expressly contemplated by Section 5.1(a), (d) increasing the Facility A Commitment or Facility B Commitment of any Bank, or (e) Article IV or the definitions contained in Section 1.1 applicable thereto. The Agent shall make such requests or take such actions in respect of Borrower as the Required Banks shall direct. Further, the Agent shall grant such waivers, consents or approvals in favor of Borrower as the Required Banks shall direct. SECTION 12.4. Consultation with Experts. The Agent may consult with legal counsel (who may be counsel for Borrower), independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. SECTION 12.5. Liability of the Agent. Neither the Agent nor any of its directors, officers, agents, or employees shall be liable for any action taken or not taken by it in connection herewith (a) with the consent or at the request of the Required Banks or (b) in the absence of its own gross negligence or willful misconduct, it being the intention of the Banks that such parties shall not be liable for the consequences of their negligence. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (a) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder, (b) the performance or observance of any of the covenants or agreements of Borrower, (c) the satisfaction of any condition specified in Article VI, except receipt of items required to be delivered to the Agent, or (d) the validity, effectiveness or genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith; provided, FIFTH RESTATED CREDIT AGREEMENT PAGE 77 84 that the Agent expressly agrees that it will exercise the same degree of care with respect to insuring the perfection and proper administration of collateral for the Obligations as it would exercise if such Obligations were held by Agent entirely for its own account. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing (which may be a bank wire, telex or similar writing) believed by it to be genuine or to be signed by the proper party or parties or upon any oral notice which the Agent believes will be confirmed in writing by the proper party or parties. If the Agent fails to take any action required to be taken by it under the Loan Papers after a Default and within a reasonable time after being requested to do so by any Bank (after such requesting Bank has obtained the approval of such other Banks as required), the Agent shall not suffer or incur any liability as a result thereof, but such requesting Bank may request the Agent to resign, whereupon the Agent shall so resign pursuant to Section 12.9. SECTION 12.6. Delegation of Duties. The Agent may execute any of its duties hereunder by or through officers, directors, employees, attorneys, or agents. SECTION 12.7. Indemnification. Each Bank shall, ratably in accordance with its Commitment, indemnify the Agent (to the extent not reimbursed by Borrower) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Agent's gross negligence or willful misconduct) that the Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Agent hereunder, including without limitation, matters arising out of the Agent's own negligence. SECTION 12.8. Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. SECTION 12.9. Successor Agent. The Agent may resign at any time by giving written notice thereof to the Banks and Borrower. In addition, Borrower may, prior to a Default, request the designation by the Banks of a successor Agent. Upon any such request by Borrower or resignation by the Agent, the Required Banks shall have the right to appoint a successor Agent, which shall be one of the Banks. If no successor Agent shall have been so appointed by the Required Banks and accepted such appointment within thirty (30) days after the retiring Agent's giving of notice of resignation or Borrower's request for a successor Agent, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall (a) be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $500,000,000 and (b) unless the successor Agent is a Bank, be reasonably acceptable to Borrower. Upon the acceptance of its appointment as a successor Agent hereunder, such FIFTH RESTATED CREDIT AGREEMENT PAGE 78 85 successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any Agent's resignation hereunder as the Agent, the provisions of this Section 12.9 shall continue to inure to its benefit as to any actions taken or omitted to be taken by it while it was the Agent. Borrower shall be entitled to recommend a successor Agent at the time of designation of any successor Agent pursuant to this Section 12.9. The Banks shall give due consideration to the successor nominated by Borrower, but shall have no obligation to approve such nominee. ARTICLE XIII PROTECTION OF YIELD; CHANGE IN LAWS SECTION 13.1. Basis for Determining Interest Rate Applicable to CD Rate Loans and Eurodollar Loans Inadequate. If on or prior to the first day of any Interest Period with respect to a Committed Borrowing: (a) the Agent is advised by any Bank that deposits in dollars (in the applicable amounts) are not being offered to such Bank(s) in the relevant market for such Interest Period, or (b) Banks having fifty percent (50%) or more of the aggregate amount of the Commitments advise the Agent that the Adjusted London Interbank Offered Rate as determined by the Agent will not adequately and fairly reflect the cost to such Banks of funding their respective shares of the requested Committed Borrowing comprised of Eurodollar Loans for such Interest Period, or (c) Banks having fifty percent (50%) or more of the aggregate amount of the Commitments advise the Agent that the Adjusted CD Rate as determined by the Agent will not adequately and fairly reflect the cost to such Bank(s) of funding of their respective shares of the requested Committed Borrowing comprised of CD Rate Loans for such Interest Period; the Agent shall give notice thereof to Borrower and the Banks, whereupon the obligations of the Banks to make Committed Eurodollar Loans or Committed CD Rate Loans (as applicable) shall be suspended until the Agent notifies Borrower that the circumstances giving rise to such suspension no longer exist. Unless Borrower notifies the Agent at least two (2) Domestic Business Days before the date of any Committed Borrowing for which a Request for Committed Loans has previously been given that it elects not to borrow on such date, such Committed Borrowing shall instead be made as a Committed Borrowing comprised of Base Rate Loans. FIFTH RESTATED CREDIT AGREEMENT PAGE 79 86 SECTION 13.2. Illegality of CD Rate Loans or Eurodollar Loans. (a) If, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Eurodollar Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or its Eurodollar Lending Office) to make, maintain or fund its Eurodollar Loans and/or CD Rate Loans and such Bank shall so notify the Agent, the Agent shall forthwith give notice thereof to the other Banks and Borrower. Until such Bank notifies Borrower and the Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make Committed Eurodollar Loans and/or Committed CD Rate Loans (as applicable) shall be suspended. Before giving any notice to the Agent pursuant to this Section 13.2, such Bank shall designate a different Eurodollar Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding Eurodollar Loans or CD Rate Loans to maturity and shall so specify in such notice, Borrower shall immediately convert the principal amount of each such Eurodollar Loan or CD Rate Loans to a Committed Base Rate Loan (or a Committed CD Rate Loan or Committed Eurodollar Loan if either remains available) of an equal principal amount from such Bank (on which interest and principal shall be payable contemporaneously with the unaffected Eurodollar Loans or CD Rate Loans (as applicable) of the other Banks). (b) No Bank shall be required to make any Loan hereunder if the making of such Loan would be in violation of any law applicable to such Bank. SECTION 13.3. Increased Cost of CD Rate Loans or Eurodollar Loans. If after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (a) shall subject any Bank (or its Lending Office) to any tax, duty or other charge with respect to its Eurodollar Loans, its CD Rate Loans or its Notes or its obligation to make Eurodollar Loans or CD Rate Loans or shall change the basis of taxation of payments to any Bank (or its Lending Office) of the principal of or interest on its Eurodollar Loans or CD Rate Loans or any other amounts due under this Agreement in respect of its Eurodollar Loans or CD Rate Loans or its obligation to make Eurodollar Loans or CD Rate Loans (except for changes in the rate of tax on the overall net income of such Bank or its Lending Office imposed by the jurisdiction in which such Bank's principal executive office or Lending Office is located); or FIFTH RESTATED CREDIT AGREEMENT PAGE 80 87 (b) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any Committed Eurodollar Loan any such requirement included in an applicable Eurodollar Reserve Percentage and excluding with respect to any CD Rate Loan any such requirement included in an applicable CD Reserve Percentage) against assets of, deposits with or for the account of or credit extended by, any Bank's Lending Office or shall impose on any Bank (or its Lending Office) or the London interbank market or the applicable certificate of deposit market any other condition affecting its Eurodollar Loans, its CD Rate Loans, its Notes or its obligation to make Eurodollar Loans or CD Rate Loans; and the result of any of the foregoing is to increase the cost to such Bank (or its Lending Office) of making or maintaining any Eurodollar Loan or CD Rate Loans, or to reduce the amount of any sum received or receivable by such Bank (or its Lending Office) under this Agreement or under its Notes with respect thereto, by an amount deemed by such Bank to be material, then, within five (5) days after demand by such Bank (with a copy to the Agent), Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction. Each Bank will promptly notify Borrower and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section 13.3 and will designate a different Lending Office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank claiming compensation under this Section 13.3 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. In determining such amount, such Bank may use any reasonable averaging and attribution methods. SECTION 13.4. Alternative Committed Loans Substituted for Affected Eurodollar Loans or CD Rate Loans. If (a) the obligation of any Bank to make Eurodollar Loans or CD Rate Loans has been suspended pursuant to Section 13.2 or (b) any Bank has demanded compensation under Section 13.3 and Borrower shall, by at least five (5) Eurodollar Business Days (with respect to Eurodollar Loans) or five (5) Domestic Business Days (with respect to CD Rate Loans) prior notice to such Bank through the Agent, have elected that the provisions of this Section 13.4 shall apply to such Bank, then, unless and until such Bank notifies Borrower that the circumstances giving rise to such suspension or demand for compensation no longer apply: (a) all Loans which would otherwise be made by such Bank as Eurodollar Loans or CD Rate Loans (as applicable) shall be made instead as Base Rate Loans (or CD Rate Loans or Eurodollar Loans if either remains available) (on which interest and principal shall be payable contemporaneously with the unaffected Eurodollar Loans or CD Rate Loans (as applicable) of the other Banks), and FIFTH RESTATED CREDIT AGREEMENT PAGE 81 88 (b) after each of its Eurodollar Loans or CD Rate Loans (as applicable) has been repaid, all payments of principal which would otherwise be applied to repay such Eurodollar Loans or CD Rate Loans (as applicable) shall be applied to repay its Base Rate Loans or CD Rate Loans or Eurodollar Loans if either remains available instead. SECTION 13.5. Capital Adequacy. If after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof, by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive (whether or not having the force of Law), shall: (a) impose, modify or deem applicable any reserve, special deposit, compensatory loan, deposit insurance, capital adequacy, minimum capital, capital ratio or similar requirement against all or any assets held by, deposits or accounts with, credit extended by or to, or commitments to extend credit or any other acquisition of funds by any Bank (or its Lending Office), or impose on any Bank (or its Lending Office) any other condition, with respect to the maintenance by such Bank of all or any part of its Commitment; or (b) subject any Bank (or its Lending Office) to, or cause the termination or reduction of a previously granted exemption with respect to, any Tax with respect to the maintenance by such Bank of all or any part of its Commitment (other than Taxes assessed against such Bank's overall net income); and the result of any of the foregoing is to increase the cost to such Bank (or its Lending Office) of maintaining its Commitment or to reduce the amount of any sums received or receivable by it (or its Lending Office) under this Agreement or any other Loan Document, or to reduce the rate of return on such Bank's equity in connection with this Agreement, as the case may be, by an amount which such Bank deems material then, in any such case, within five (5) days of demand by such Bank (or its Lending Office) (with a copy to Agent), Borrower shall pay to such Bank (or its Lending Office) such additional amount or amounts as will compensate such Bank for any additional cost, reduced benefit, reduced amount received or reduced rate of return. Each Bank will promptly notify Borrower and the Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section 13.5. A certificate of any Bank claiming compensation under thisSection 13.5 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive in the absence of manifest error. In determining such amount, such Bank may use any reasonable averaging and attribution methods. Without limiting the foregoing, in the event any event or condition described in this Section 13.5 shall occur or arise which relates to the maintenance by any Bank FIFTH RESTATED CREDIT AGREEMENT PAGE 82 89 of that part of (a) its Facility A Commitment which is in excess of its Facility A Commitment Percentage of the Facility A Borrowing Base then in effect, or (b) that part of its Facility B Commitment which is in excess of its Facility B Commitment Percentage of the Facility B Borrowing Base then in effect (such excess portion of the Facility A and Facility B Commitments of any Bank is hereinafter referred to as its "Surplus Commitment"), such Bank shall notify Agent and Borrower of the occurrence of such event or the existence of such condition and of the amount of a fee (to be computed on a per annum basis with respect to such Bank's Surplus Commitment) which such Bank determines in good faith will compensate such Bank for such additional cost, reduced benefit, reduced amount received or reduced rate of return. Within five (5) Domestic Business Days following receipt of such notice, Borrower shall notify such Bank whether it accepts or rejects such fee (if Borrowerfails to timely respond to such notice it will be deemed to have accepted such fee). If Borrower rejects such fee, the Facility A and/or B Commitments (depending on which is affected by such condition or event) of each Bank will be automatically and permanently reduced to the Facility A or Facility B (as applicable) Borrowing Base then in effect. If Borrower accepts such fee, such fee shall accrue from and after the date of such Bank's notice and shall be payable quarterly in arrears (based on the daily average balance of such Bank's Surplus Commitment) on the last day of each March, June, September and December and on the Termination Date. Such fee shall be in lieu of any amounts to which such Bank would otherwise be entitled in respect of its Surplus Commitment pursuant to the other provisions of thisSection 13.5 for the period on and after the date of such notice unless such Bank determines that such fee is not adequate to fully compensate such Bank for any additional cost, reduced benefit, reduced amount received or reduced rate of return such Bank may thereafter incur in respect of such Bank's Surplus Commitment. In that event such Bank shall be entitled to such additional compensation to which such Bank is otherwise entitled pursuant to thisSection 13.5. SECTION 13.6. Taxes. All amounts payable by Borrower under the Loan Papers (whether principal, interest, fees, expenses, or otherwise) to or for the account of each Bank shall be paid in full, free of any deductions or withholdings for or on account of any Taxes. If Borrower is prohibited by law from paying any such amount free of any such deductions and withholdings, then (at the same time and in the same manner that such original amount is otherwise due under the Loan Papers) Borrower shall pay to or for the account of such Bank such additional amount as may be necessary in order that the actual amount received by such Bank after deduction and/or withholding (and after payment of any additional Taxes due as a consequence of the payment of such additional amount, and so on) will equal the amount such Bank would have received if such deduction or withholding were not made. SECTION 13.7. Discretion of Banks as to Manner of Funding. Notwithstanding any provisions of this Credit Agreement to the contrary, each Bank shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being FIFTH RESTATED CREDIT AGREEMENT PAGE 83 90 understood, however, that for the purposes of this Credit Agreement all determinations hereunder shall be made as if such Bank had actually funded and maintained each Eurodollar Loan and CD Rate Loan during the Interest Period for such Eurodollar Loan or CD Rate Loan through the purchase of deposits having a maturity corresponding to the last day of such Interest Period and bearing an interest rate equal to the CD Rate or the London InterBank Offered Rate for such Interest Period. ARTICLE XIV MISCELLANEOUS SECTION 14.1. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including bank wire, telecopy or similar writing) and shall be given to such party at its address, telex or telecopy number set forth on the signature pages hereof or such other address, telex or telecopy number as such party may hereafter specify for the purpose by notice to the Agent and Borrower. Each such notice, request or other communication shall be effective (a) if given by telecopy, when such telecopy is transmitted to the telecopy number specified in this Section 14.1 and the appropriate answerback is received or receipt is otherwise confirmed, (b) if given by mail, one (1) Domestic Business Day after deposit in the mails with first class postage prepaid, addressed as aforesaid or (c) if given by any other means, when delivered at the address specified in this Section 14.1; provided that notices to the Agent under Article II or XIII shall not be effective until received. SECTION 14.2. No Waivers. No failure or delay by the Agent or any Bank in exercising any right, power or privilege hereunder or under any Note or other Loan Paper shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or in any of the other Loan Papers. SECTION 14.3. Expenses; Documentary Taxes; Indemnification. (a) Borrower shall pay (i) all out-of-pocket expenses of the Agent, including reasonable fees and disbursements of special counsel for the Banks and the Agent, in connection with the preparation of this Agreement and the other Loan Papers and, if appropriate, the recordation of the Loan Papers, any waiver or consent hereunder or any amendment hereof or any Default or alleged Default hereunder and (ii) if an Event of Default occurs, all out-of-pocket expenses incurred by the Agent or any Bank, including fees and disbursements of counsel in connection with such Event of Default and collection and other enforcement proceedings resulting therefrom, fees of auditors and consultants incurred in connection therewith and investigation expenses incurred by the Agent or any Bank in connection therewith. Borrower shall indemnify each Bank against any Taxes imposed by reason of the execution and delivery of this Agreement or the Notes. FIFTH RESTATED CREDIT AGREEMENT PAGE 84 91 (b) Borrower agrees to indemnify each Bank and hold each Bank harmless from and against any and all liabilities, losses, damages, costs and expenses of any kind (including, without limitation, the reasonable fees and disbursements of counsel for any Bank in connection with any investigative, administrative or judicial proceeding, whether or not such Bank shall be designated a party thereto) which may be incurred by any Bank (or by the Agent in connection with its actions as the Agent hereunder), relating to or arising out of this Agreement or any actual or proposed use of proceeds of Loans hereunder; provided that no Bank shall have the right to be indemnified hereunder for its own gross negligence or willful misconduct, it being the intention hereby that a Bank or the Agent shall be indemnified for the consequences of their negligence. SECTION 14.4. Right and Sharing of Set-Offs. (a) Upon the occurrence and during the continuance of any Event of Default, each Bank is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by such Bank to or for the credit or the account of Borrower against any and all of the obligations of Borrower now or hereafter existing under this Agreement and any Note held by such Bank, irrespective of whether or not such Bank shall have made any demand under this Agreement or such Note and although such obligations may be unmatured. Each Bank agrees promptly to notify Borrower after any such setoff and application made by such Bank, provided that the failure to give such notice shall not affect the validity of such setoff and application. The rights of each Bank under this Section 14.4(a) are in addition to other rights and remedies (including, without limitation, other rights of setoff) which such Bank may have. (b) Each Bank agrees that if it shall, by exercising any right of setoff or counterclaim or otherwise, receive payment after the occurrence and during the continuance of an Event of Default of a proportion of the aggregate amount of principal and interest due with respect to the Loans held by it which is greater than the proportion received by any other Bank in respect of the aggregate amount of principal and interest due with respect to the Loans held by such other Bank, the Bank receiving such proportionately greater payment shall purchase such participations in the Loans held by the other Banks, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Loans held by the Banks shall be shared by the Banks in accordance with the amounts to be paid to such Bank pursuant to Section 3.2(c); provided that nothing in this Section 14.4 shall impair the right of any Bank to exercise any right of setoff or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of Borrower other than its indebtedness under the Loans. Borrower agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in a Loan may exercise rights of setoff or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of Borrower in the amount of such participation. FIFTH RESTATED CREDIT AGREEMENT PAGE 85 92 SECTION 14.5. Amendments and Waivers. Any provision of this Agreement, the Notes or the other Loan Papers may be amended or waived if, but only if such amendment or waiver is in writing and is signed by Borrower and the Required Banks (and, if the rights or duties of the Agent are affected thereby, by the Agent); provided that no such amendment or waiver shall, unless signed by all the Banks, (a) increase the total aggregate Commitments of the Banks or subject any Bank to any additional obligation, (b) forgive any of the principal of or reduce the rate of interest on any Loan or any fees hereunder, (c) postpone the date fixed for any payment of principal of or interest on any Loan or any fees hereunder including the Facility A Termination Date and/or the Facility B Termination Date, (d) change the percentage of the Commitments except as otherwise provided for in this Agreement or of the aggregate unpaid principal amount of the Notes, or the number of Banks, which shall be required for the Banks or any of them to take any action under this Section 11.5 or any other provision of this Agreement, (e) permit Borrower to assign any of its rights hereunder, or (f) amend or waive any of the provisions of Section 2.8(b), Section 2.9 (b) or Article IV or the definitions contained in Section 1.1 applicable thereto. SECTION 14.6. Survival. All representations, warranties and covenants made by Borrower herein or in any certificate or other instrument delivered by it or in its behalf under the Loan Papers shall be considered to have been relied upon by the Banks and shall survive the delivery to the Banks of such Loan Papers or the extension of the Loans (or any part thereof), regardless of any investigation made by or on behalf of the Banks. SECTION 14.7. Limitation on Interest. Regardless of any provision contained in the Loan Papers, the Banks shall never be entitled to receive, collect, or apply, as interest on the Loans, any amount in excess of the Maximum Lawful Rate, and in the event Banks ever receive, collect or apply as interest any such excess, such amount which would be deemed excessive interest shall be deemed a partial prepayment of principal and treated hereunder as such; and if the Loans are paid in full, any remaining excess shall promptly be paid to Borrower. In determining whether or not the interest paid or payable under any specific contingency exceeds the Maximum Lawful Rate, Borrower and the Banks shall, to the extent permitted under applicable law, (a) characterize any nonprincipal payment as an expense, fee or premium rather than as interest, (b) exclude voluntary prepayments and the effects thereof and (c) amortize, prorate, allocate and spread, in equal parts, the total amount of the interest throughout the entire contemplated term of the Notes, so that the interest rate is the Maximum Lawful Rate throughout the entire term of the Notes; provided, however, that if the unpaid principal balance thereof is paid and performed in full prior to the end of the full contemplated term thereof, and if the interest received for the actual period of existence thereof exceeds the Maximum Lawful Rate, the Banks shall refund to Borrower the amount of such excess and, in such event, the Banks shall not be subject to any penalties provided by any laws for contracting for, charging, taking, reserving or receiving interest in excess of the Maximum Lawful Rate. SECTION 14.8. Invalid Provisions. If any provision of the Loan Papers is held to be illegal, invalid, or unenforceable under present or future laws effective during the term FIFTH RESTATED CREDIT AGREEMENT PAGE 86 93 thereof, such provision shall be fully severable, the Loan Papers shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part thereof, and the remaining provisions thereof shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance therefrom. Furthermore, in lieu of such illegal, invalid, or unenforceable provision there shall be added automatically as a part of the Loan Papers a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid and enforceable. SECTION 14.9. Waiver of Consumer Credit Laws. Pursuant to Article 15.10(b) of Chapter 15, Subtitle 79, Revised Civil Statutes of Texas, 1925, as amended, Borrower agrees that such Chapter 15 shall not govern or in any manner apply to the Loans. SECTION 14.10. Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, except that Borrower may not assign or otherwise transfer any of its rights under this Agreement. (b) The Agent and Borrower may, for all purposes of this Agreement, treat any Bank as the holder of any Note drawn to its order (and owner of the Loans evidenced thereby) until written notice of assignment, transfer or participation shall have been received by them. Any Bank may transfer or assign all or any part of its interest in Loans and its interest herein to any of its affiliates regardless of the term of such transfer or assignment. Any Bank may transfer or assign all or any part of its interest in Loans to any commercial bank which is a member of the Federal Reserve System and has combined capitalized and surplus and undivided profits of not less than $100,000,000. Notwithstanding the foregoing, no Bank shall transfer or assign all or any part of its Loans under this Agreement to any Person other than an affiliate of such Bank without the prior written approval of Borrower such approval to not be unreasonably withheld. (c) Subject to receiving the prior written consent of Borrower, such consent to not be unreasonably withheld, each Bank shall have the right to disclose any information in its possession regarding Borrower or its Subsidiaries, or regarding any assets pledged to the Banks in connection herewith to any transferee, participant, potential transferee or potential participant of any of the Loans or any part thereof. SECTION 14.11. TEXAS LAW. THIS AGREEMENT AND EACH NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS. SECTION 14.12. Consent to Jurisdiction; Waiver of Immunities. (a) Except to the extent required for the exercise of the remedies provided in the Mortgages and other security instruments, Borrower hereby irrevocably submit to the jurisdiction of any Texas State or Federal court sitting in the Northern District of Texas over any action or FIFTH RESTATED CREDIT AGREEMENT PAGE 87 94 proceeding arising out of or relating to this Agreement or any other Loan Papers, and Borrower hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in such Texas State or Federal court. Borrower hereby irrevocably appoints Prentice-Hall Corporate Systems, Inc. (the "Process Agent"), with an office on the date hereof at 400 N. St. Paul, Dallas, Texas 75201, as its agent to receive on behalf of Borrower proper service of copies of the summons and complaint and any other process which may be made by mailing or delivering a copy of such process to Borrower (as applicable) in care of the Process Agent at the Process Agent's above address, and Borrower hereby irrevocably authorizes and directs the Process Agent to accept such service on their behalf. Such appointment and authorization shall be automatically and immediately effective without the necessity of any further action on the part of Borrower, the Agent or the Banks in the event Borrower ceases to maintain its principal executive office in the Dallas/Fort Worth Metropolitan area. As an alternative method of service, Borrower also irrevocably consents to the service of any and all process in any such action or proceeding by the mailing of copies of such process to Borrower at its address specified in Section 14.1. Borrower agree that a final judgment on any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. (b) Nothing in this Section 14.12 shall affect any right of the Banks to serve legal process in any other manner permitted by law or affect the right of any Bank to bring any action or proceeding against Borrower or its Subsidiaries or their properties in the courts of any other jurisdictions. (c) To the extent that Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, Borrower hereby irrevocably waives such immunity in respect of their obligations under this Agreement and the other Loan Papers. SECTION 14.13. Counterparts; Effectiveness. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when the Agent shall have received counterparts hereof signed by all of the parties hereto or, in the case of any Bank as to which an executed counterpart shall not have been received, the Agent shall have received telegraphic or other written confirmation from such Bank of execution of a counterpart hereof by such Bank. SECTION 14.14. No Third Party Beneficiaries. It is expressly intended that there shall be no third party beneficiaries of the covenants, agreements, representations or warranties herein contained other than transferees or assignees of all or any part of any Bank's interest hereunder permitted pursuant to Section 14.10(b). FIFTH RESTATED CREDIT AGREEMENT PAGE 88 95 SECTION 14.15. COMPLETE AGREEMENT. THIS AGREEMENT AND THE OTHER LOAN PAPERS COLLECTIVELY REPRESENT THE FINAL AGREEMENT BY AND AMONG THE BANKS, THE AGENT AND BORROWER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE BANKS, THE AGENT AND BORROWER. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE BANKS, THE AGENT AND BORROWER. SECTION 14.16. WAIVER OF JURY TRIAL. BORROWER AND THE BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers on the day and year first above written. BORROWER: SNYDER OIL CORPORATION, a Delaware corporation By: _______________________________ Peter E. Lorenzen, Vice President, General Counsel 777 Main Street, Suite 2500 Fort Worth, Texas 76102 Attn: James H. Shonsey Telecopy No.: 817-882-5895 with a copy to: Thomas J. Edelman 595 Madison Avenue 27th Floor New York, New York 10022 Telecopy No.: 212-888-6877 BANKS: COMMITMENTS: - ----- ----------- FIFTH RESTATED CREDIT AGREEMENT PAGE 89 96 NATIONSBANK OF TEXAS, N.A. Facility A: $120,000,000 Facility B: $30,000,000 By:____________________________________ E. Murphy Markham IV, Senior Vice President FIFTH RESTATED CREDIT AGREEMENT PAGE 90 97 Domestic Lending Office: NationsBank of Texas, N.A. 901 Main St. 49th Floor, NationsBank Plaza Dallas, Texas 75202 Attn: E. Murphy Markham IV Telecopy No.: 214-508-1286 Eurodollar Lending Office: NationsBank of Texas, N.A. 901 Main St. 49th Floor, NationsBank Plaza Dallas, Texas 75202 Attn: E. Murphy Markham IV Telecopy No.: 214-508-1286 WELLS FARGO BANK, N.A. Facility A: $110,000,000 Facility B: $27,500,000 By:________________________________ Charles D. Kirkham, Vice President Domestic Lending Office: Wells Fargo Bank, N.A. 420 Montgomery Street San Francisco, California 94103 Attn: Ronnie Christian Telecopy No.: 415-989-4319 Eurodollar Lending Office: Wells Fargo Bank, N.A. 420 Montgomery Street San Francisco, California 94103 Attn: Cherri Rodgers Telecopy No.: 213-627-8228 FIFTH RESTATED CREDIT AGREEMENT PAGE 91 98 TEXAS COMMERCE BANK NATIONAL ASSOCIATION Facility A: $110,000,000 Facility B: $27,500,000 By: ___________________________________ W. Paschall Tosch, Senior Vice President Domestic Lending Office: Texas Commerce Bank National Association 2200 Ross Avenue, 3rd Floor Dallas, Texas 75201 Attn: Timothy E. Perry, Vice President Telecopy No.: 214-922-2389 Eurodollar Lending Office: Texas Commerce Bank National Association 2200 Ross Avenue, 3rd Floor Dallas, Texas 75201 Attn: Timothy E. Perry, Vice President Telecopy No.: 214-922-2389 BANK ONE TEXAS, N.A., Facility A: $60,000,000 Facility B: $15,000,000 By:________________________________ Brad Bartek, Vice President Domestic Lending Office: Bank One, Texas, N.A. 500 Throckmorton P.O. Box 2050 Ft. Worth, Texas 76113 Telecopy No.: 817-884-5622 FIFTH RESTATED CREDIT AGREEMENT PAGE 92 99 Eurodollar Lending Office: Bank One, Texas, N.A. 500 Throckmorton P.O. Box 2050 Ft. Worth, Texas 76113 Telecopy No.: 817-884-5622 AGENT: NATIONSBANK OF TEXAS, N.A. By:________________________________ E. Murphy Markham IV, Senior Vice President 901 Main St., 49th Floor Dallas, Texas 75202 Attn: E. Murphy Markham IV Telecopy No.: 215-508-1286 FIFTH RESTATED CREDIT AGREEMENT PAGE 93 100 Exhibit A CERTIFICATE OF EFFECTIVENESS This Certificate of Effectiveness (the "Certificate") is executed the __ day of ________, 1994 by and between Snyder Oil Corporation ("Borrower") and NationsBank of Texas, N.A., as Agent for the Banks under and as defined in that certain Fifth Restated Credit Agreement (the "Agreement") dated as of the 30th day of June, 1994 by and among Borrower, Agent and the banks named therein. This Certificate is executed pursuant to Section 6.1 of the Agreement. This Certificate is the "Certificate of Effectiveness" therein referenced. Unless otherwise defined herein, all terms used herein with their initial letter capitalized shall have the meaning given such terms in the Agreement. The Borrower and the Agent on behalf of itself and the Banks hereby acknowledge and agree as follows: 1. Except as set forth in that certain letter agreement by and between Borrower and Agent of even date herewith, Borrower has satisfied each condition precedent to the effectiveness of the Agreement contained in Section 6.1 of the Agreement. 2. The Agreement is effective as of the date hereof. Executed and effective as of the date and year first above written. NATIONSBANK OF TEXAS, N.A., as Agent for the Banks ___________________________________________ E. Murphy Markham IV, Senior Vice President SNYDER OIL CORPORATION ___________________________________________ Peter Lorenzen Vice President, General Counsel FIFTH RESTATED CREDIT AGREEMENT PAGE 94 101 Exhibit B-1 FORM OF COMPETITIVE BID REQUEST NationsBank of Texas, N.A., as Agent for the Banks parties to the Credit Agreement referred to below 901 Main Street Dallas, Texas 75202 Dear Sirs: Reference is made to the Fifth Restated Credit Agreement dated as of June 30, 1994 (as said Credit Agreement may from time to time be amended, the "Credit Agreement"), among the undersigned, the Banks named therein, and NationsBank of Texas, N.A., as Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The undersigned hereby gives you notice pursuant to Section 2.3.1 of the Credit Agreement that it requests a Competitive Bid Borrowing under the Credit Agreement, and in that connection sets forth the terms on which such Competitive Bid Borrowing is requested to be made: (A) Borrowing Date of Competitive Bid Borrowing (which is a (Eurodollar/Domestic) Business Day) (B) Type of Competitive Bid Borrowing(1) (C) Principal Amount of Competitive Bid Borrowing(2) (D) Interest rate basis(3) (E) Interest Period and the last day thereof(4) ____________________ (1) Competitive Bid Borrowing comprised of Facility A Loans or Facility B Loans. (2) If the Competitive Bid Borrowing is to be comprised of Facility A Loans, not less than $5,000,000 or greater than the unused Total Facility A Commitment and in integral multiples of $500,000 and if the Competitive Bid Borrowing is to be comprised of Facility B Loans, not less than $5,000,000 or greater than the Unused Facility B Availability and in integral multiples of $500,000. (3) Eurodollar Loan or Fixed Rate Loan. (4) Which shall have a duration (i) in the case of the Eurodollar Loan, of one, two, three, six, nine or twelve months, and (ii) in the case of a Fixed Rate Loan, of not less than 7 calendar days nor more than 360 calendar days, and which, in either case, shall end not later than the applicable Facility A Termination Date or Facility B Termination Date, as the case may be. FIFTH RESTATED CREDIT AGREEMENT PAGE 95 102 By delivery of this Competitive Bid Request and the acceptance of any or all of the Competitive Bid Loans offered by the Banks in response to this Competitive Bid Request, the undersigned shall be deemed to have represented and warranted that the applicable conditions to lending specified in Article VI of the Credit Agreement have been satisfied with respect to the Competitive Bid Borrowing requested hereby. Very truly yours. SNYDER OIL CORPORATION By:_____________________________________ Name:___________________________________ Title:__________________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 96 103 Exhibit B-2 FORM OF NOTICE TO BANKS OF COMPETITIVE BID REQUEST (Name of Bank) (Address of Bank) (Date) Attention: Dear Sirs: Reference is made to the Fifth Restated Credit Agreement dated as of June 30, 1994 (as said Credit Agreement may from time to time be amended, the "Credit Agreement"), among Snyder Oil Corporation (the "Company"), the Banks named therein, and the undersigned, as Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The Company delivered a Request for Competitive Bids requesting a Competitive Bid on ________________ ___________, 19____ pursuant to Section 2.3.1(a) of the Credit Agreement, and in that connection your are invited to submit a Competitive Bid by (Date)/(Time) .(5) Your Competitive Bid must comply with Section 2.3.1(b) of the Credit Agreement, and the terms set forth below on which the Notice of Competitive Bid Borrowing was made: (A) Date of Competitive Bid Borrowing ______________________ (B) Principal Amount of Competitive Bid Borrowing ______________________ (C) Type of Competitive Bid Borrowing(6) ______________________ (D) Interest rate basis ______________________ (E) Interest Period and the last day thereof ______________________ ____________________ 5 The Competitive Bid must be received by the Agent (i) in the case of Eurodollar Loans, not later than 12:00 noon, (Dallas, Texas time), four Business Days before a proposed Competitive Bid Borrowing, and (ii) in the case of Fixed Rate Loans, not later than 9:00 a.m., (Dallas, Texas time), one Business Day before a proposed Competitive Bid Borrowing. 6 Facility A Loans or Facility B Loans. FIFTH RESTATED CREDIT AGREEMENT PAGE 97 104 Very truly yours. NATIONSBANK OF TEXAS, N.A., Agent By:_____________________________________ Name:___________________________________ Title:__________________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 98 105 FORM OF COMPETITIVE BID Exhibit B-3 NationsBank of Texas, N.A. Agent for the Banks referred to below 901 Main Street Dallas, Texas 75202 (Date) Dear Sirs: The undersigned, (Name of Bank), refers to the Fifth Restated Credit Agreement dated as of June 30, 1994 (as said Credit Agreement may from time to time be amended, the "Credit Agreement"), among Snyder Oil Corporation (the "Company"), the Banks named therein, and NationsBank of Texas, N.A., as Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement. The undersigned hereby makes a Competitive Bid pursuant to Section 2.3.1(b) of the Credit Agreement, in response to the Request for Competitive Bids (the "Competitive Bid Request") made by the Company on ______________, 19___, and in that connection sets forth below the terms on which the such Competitive Bid is made: (A) Type of Competitive Bid Loan(7) _______________________ (B) Interest Rate Basis(8) _______________________ (D) Principal Amount(9) _______________________ (E) Competitive Bid Margin(10) _______________________ (F) Interest Period and the last _______________________ day thereof(11) ____________________ (7) Facility A Loan or Facility B Loan. (8) Eurodollar Loan or CD Rate Loan. (9) In the case of Facility A Loans, not less than $1,000,000 or greater than such Bank's Facility A Commitment reduced by such Bank's Adjusted Facility A Commitment Percentage of the Facility A Outstandings and in integral multiples of $500,000. In the case of Facility B Loans, not less than $1,000,000 or greater than such Bank's Adjusted Facility B Percentage of the Unused Facility B Availability and in integral multiples of $500,000. Multiple bids will be accepted by the Agent (10) i.e., the Adjusted London Interbank Offered Rate plus ___% in the case of Eurodollar Loans or ______% in the case of Fixed Rate Loans (in each case expressed in the form of a decimal to no more than four decimal places). (11) The Interest Period must be the Interest Period specified in the Competitive Bid Request. FIFTH RESTATED CREDIT AGREEMENT PAGE 99 106 The undersigned hereby confirms that it is prepared to extend credit to the Company upon acceptance by the Company of this bid in accordance with Section 2.3.1(d) of the Credit Agreement. The undersigned hereby represents that the sum of (i) the aggregate outstanding principal amount of all Committed ( ) Facility A ( ) Facility B Loans made by it, plus (ii) the aggregate outstanding principal amount of all Competitive Bid ( ) Facility A ( ) Facility B Loans made by it (after giving effect to this Competitive Bid) does not exceed the undersigned's ( ) Facility A ( ) Facility B Commitment. Very truly yours. (NAME OF BANK) By:_____________________________________ Name:___________________________________ Title:__________________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 100 107 Exhibit B-4 REQUEST FOR COMMITTED LOANS Reference is made to that certain Fifth Restated Credit Agreement dated as of June 30, 1994, (as from time to time amended, the "Agreement") by and among Snyder Oil Corporation ("Borrower"), NationsBank of Texas, N.A., as Agent ("Agent"), and certain other Banks named therein. Terms which are defined in the Agreement and which are used but not defined herein are used herein with the meanings given them in the Agreement. Pursuant to the terms of the Agreement, Borrower hereby requests each Bank to make a ( ) Committed Facility A ( ) Committed Facility B Loan to Borrower in the amount allocated to such Bank pursuant to Section 2.1(a) or 2.2(a) of the Agreement (as applicable) of the full amount of the Borrowing requested hereby, said amount being $___________________________ to be advanced on ________________________, 19___. Borrower requests that the Committed Loans to be made hereunder shall be Base Rate Loans, CD Rate Loans and/or Eurodollar Loans and shall have the interest Periods all as set forth below:
Type of Loan Aggregate Amount Interest Period ------------ ---------------- ---------------
Borrower and the officer of Borrower signing this instrument hereby certify that: (a) Such officer is the duly elected, qualified and acting officer of Borrower as indicated below such officer signature hereto; (b) The representations and warranties of borrower set forth in the Agreement and the Loan Papers delivered to Banks are true and correct on and as of the date hereof, with the same effect as thought such representations and warranties had been made on and as of the date hereof or, if such representations and warranties are expressly limited to particular dates, as of such particular dates. No material changes have occurred in the financial condition of Borrower or any of its Subsidiaries since the date of the last financial reports delivered to Banks pursuant to Section 8.1 of the Agreement. (c) There does not exist on the date hereof, any condition or event which constitutes a Default, nor will any such Default exist upon Borrower's receipt and FIFTH RESTATED CREDIT AGREEMENT PAGE 101 108 application of the proceeds requested hereby. Borrower will use the proceeds hereby requested in compliance with the applicable provisions of the Agreement. (d) Borrower has performed and complied with all agreements and conditions in the Agreement required to be performed or complied with by Borrower on or prior to the date hereof, and each of the conditions precedent to making of Loans contained in the Agreement remain satisfied in all material respects. (e) After the making of the Committed Loans requested hereby, (i) Borrower's Consolidated Senior Debt will not be in excess of the Total Borrowing Base on the date requested for the making of such Committed Loans, (ii) Borrower's Adjusted Consolidated Senior Debt will not exceed the Facility A Borrowing Base, and (iii) The Facility A Outstandings shall not exceed the Facility A Borrowing Base. IN WITNESS WHEREOF, this instrument is executed as of _________, 19___. SNYDER OIL CORPORATION a Delaware corporation By:_______________________________ Its:______________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 102 109 Exhibit C-1 COMMITTED FACILITY A NOTE $_______________ Dallas, Texas July 5, 1994 FOR VALUED RECEIVED, the undersigned, Snyder Oil Corporation, a Delaware corporation ("Maker"), hereby promises to pay to the order of (Name of Bank or Lending Office) ("Payee"), at the offices of NationsBank of Texas, N.A., as Agent (herein so called) for Payee and the other Banks hereinafter described at the offices of Agent, 901 Main St., 49th Floor, Dallas, Texas 75202, Dallas County, Texas, the principal sum of (Amount of such Bank's Facility A Commitment) ($___________), or so much thereof as may be advanced and outstanding, together with interest, as hereinafter described. This Committed Facility A Note has been executed and delivered pursuant to, and is subject to and governed by, the terms of that certain Fifth Restated Credit Agreement dated as of June 30, 1994 (as hereafter renewed, extended, amended, or supplemented, the "Agreement") among Maker, Payee, and the other Banks named therein and is one of the "Committed Facility A Notes" referred to therein. Unless otherwise defined herein or unless the context hereof otherwise requires, each term used herein with its initial letter capitalized has the meaning given to such term in the Agreement. Maker also promises to pay interest on the unpaid principal amount hereof in like money at the offices of Agent above referenced from the date hereof at the rates applicable to Committed Facility A Loans provided in the Agreement. Accrued interest shall be due and payable on the expiration of each Interest Period with respect to those Loans which are subject to the Interest Period then expiring. The principal balance of the Committed Facility A Loans evidenced by this Committed Facility A Note shall be paid at the times and in the amounts required by Sections 2.10(a), 3.2, 4.5 and 10.4 of the Agreement. The entire outstanding principal balance hereof and all accrued but unpaid interest therein shall be due and payable in full on the Facility A Termination Date. Upon and subject to the terms and conditions of the Agreement, Maker shall be entitled to prepay the principal of or interest on this Committed Facility A Note from time to time and at any time, in whole or in part. Upon the occurrence and continuance of an Event of Default, and upon the conditions stated in the Agreement, the holder hereof may, at its option, declare the entire unpaid principal of and accrued interest on this Note immediately due and payable FIFTH RESTATED CREDIT AGREEMENT PAGE 103 110 (provided that, upon the occurrence of certain Events of Default, and upon the conditions stated in the Agreement, such acceleration shall be automatic), without notice (except as otherwise required by the Agreement), demand, or presentment, all of which are hereby waived, and the holder hereof shall have the right to offset against this Note any sum or sums owed by the holder hereof to Maker. All past-due principal of and, to the extent permitted by law, accrued interest on this Committed Facility A Note shall, at the option of the holder hereof, bear interest at the lesser of (a) the Maximum Lawful Rate and (b) the Base Rate plus 4% until paid. Notwithstanding the foregoing, if at any time, any rate of interest calculated under Section 2.6(a), (b) or (c) of the Agreement (the "Contract Rate") exceeds the Maximum Lawful Rate, the rate of interest hereunder shall be limited to the Maximum Lawful Rate, but any subsequent reductions in the Contract Rate shall not reduce the rate of interest on this Committed Facility A Note below the Maximum Lawful Rate until the total amount of interest accrued equals the amount of interest which would have accrued (including the amount of interest which would have accrued prior to the payment or prepayment of any portion of this Committed Facility A Note) if the Contract Rate had at all times been in effect. In the event that at maturity (stated or by acceleration), or at final payment of this Committed Facility A Note, the total amount of interest paid or accrued on this Committed Facility A Note is less than the amount of interest which would have accrued if the Contract Rate had at all times been in effect with respect thereto, then at such time the Maker shall pay to the holder of this Committed Facility A Note an amount equal to the difference between (a) the lesser of the amount of interest which would have accrued if the Contract Rate had at all times been in effect and the amount of interest which would have accrued if the Maximum Lawful Rate had at all times been in effect, and (b) the amount of interest actually paid or accrued on this Facility A Note. SNYDER OIL CORPORATION, a Delaware corporation By:_____________________________________ Its:____________________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 104 111 COMMITTED FACILITY A LOANS, MATURITIES, AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Interest Amount of Maturity of Applicable to Committed Committed Committed Amount of Amount of Unpaid Borrowing Facility A Facility A Facility A Principal Interest Principal Notation Made Date Loan Loan Loan Paid Paid Balance By --------- ----------- ----------- ------------- --------- --------- --------- -------------
FIFTH RESTATED CREDIT AGREEMENT PAGE 105 112 Exhibit C-2 COMPETITIVE BID FACILITY A NOTE $_______________ Dallas, Texas July 5, 1994 FOR VALUED RECEIVED, the undersigned, Snyder Oil Corporation, a Delaware corporation ("Maker"), hereby promises to pay to the order of (Name of Bank or Lending Office) ("Payee"), at the offices of NationsBank of Texas, N.A., as Agent (herein so called) for Payee and the other Banks hereinafter described at the offices of Agent, 901 Main St., 49th Floor, Dallas, Texas 75202, Dallas County, Texas, the principal sum of (Amount of such Bank's Facility A Commitment) ($___________), or so much thereof as may be advanced and outstanding, together with interest, as hereinafter described. This Competitive Bid Facility A Note has been executed and delivered pursuant to, and is subject to and governed by, the terms of that certain Fifth Restated Credit Agreement dated as of June 30, 1994 (as hereafter renewed, extended, amended or supplemented, the "Agreement") among Maker, Payee, and the other Banks named therein and is one of the "Competitive Bid Facility A Notes" referred to therein. Unless otherwise defined herein or unless the context hereof otherwise requires, each term used herein with its initial letter capitalized has the meaning given to such term in the Agreement. Maker also promises to pay interest on the unpaid principal amount hereof in like money at the offices of Agent above referenced from the date hereof at the rates provided in the Agreement applicable to Competitive Bid Facility A Loans and in the applicable Competitive Bids under which Competitive Bid Facility A Loans outstanding hereunder are made. Accrued interest shall be due and payable on the expiration of each Interest Period with respect to those Loans which are subject to the Interest Period then expiring. The principal balance of the Competitive Bid Facility A Loans evidenced by this Competitive Bid Facility A Note shall be paid at the times and in the amounts required by Sections 2.10(a), 3.2, 4.5 and 10.4 of the Agreement. The entire outstanding principal balance hereof and all accrued but unpaid interest therein shall be due and payable in full on the Facility A Termination Date. The amount and type of each Competitive Bid Facility A Loan made by the Bank to the Maker and the maturity thereof, the rate of interest applicable thereto and all payments made on account of principal and interest hereof, shall be recorded by the Bank and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Competitive Bid Facility A Note. FIFTH RESTATED CREDIT AGREEMENT PAGE 106 113 Upon and subject to the terms and conditions of the Agreement, Maker shall be entitled to prepay the principal of or interest on this Competitive Bid Facility A Note from time to time and at any time, in whole or in part. Upon the occurrence and continuance of an Event of Default, and upon the conditions stated in the Agreement, the holder hereof may, at its option, declare the entire unpaid principal of and accrued interest on this Note immediately due and payable (provided that, upon the occurrence of certain Events of Default, and upon the conditions stated in the Agreement, such acceleration shall be automatic), without notice (except as otherwise required by the Agreement), demand, or presentment, all of which are hereby waived, and the holder hereof shall have the right to offset against this Note any sum or sums owed by the holder hereof to Maker. All past-due principal of and, to the extent permitted by law, accrued interest on this Competitive Bid Facility A Note shall, at the option of the holder hereof, bear interest at the lesser of (a) the Maximum Lawful Rate and (b) the Base Rate plus 4% until paid. Notwithstanding the foregoing, if at any time, any rate of interest calculated under Section 2.6(b) or (d) of the Agreement (the "Contract Rate") exceeds the Maximum Lawful Rate, the rate of interest hereunder shall be limited to the Maximum Lawful Rate, but any subsequent reductions in the Contract Rate shall not reduce the rate of interest on this Competitive Bid Facility A Note below the Maximum Lawful Rate until the total amount of interest accrued equals the amount of interest which would have accrued (including the amount of interest which would have accrued prior to the payment or prepayment of any portion of this Competitive Bid Facility A Note) if the Contract Rate had at all times been in effect. In the event that at maturity (stated or by acceleration), or at final payment of this Competitive Bid Facility A Note, the total amount of interest paid or accrued on this Competitive Bid Facility A Note is less than the amount of interest which would have accrued if the Contract Rate had at all times been in effect with respect thereto, then at such time the Maker shall pay to the holder of this Competitive Bid Facility A Note an amount equal to the difference between (a) the lesser of the amount of interest which would have accrued if the Contract Rate had at all times been in effect and the amount of interest which would have accrued if the Maximum Lawful Rate had at all times been in effect, and (b) the amount of interest actually paid or accrued on this Facility A Note. SNYDER OIL CORPORATION, a Delaware corporation By:_______________________________ Its:______________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 107 114 COMPETITIVE BID FACILITY A LOANS, MATURITIES, AND PAYMENTS OF PRINCIPAL AND INTEREST
Amount of Maturity of Rate of Interest Competitive Competitive Applicable to Amount of Amount of Unpaid Borrowing Bid Facility A Bid Facility Competitive Bid Principal Interest Principal Notation Made Date Loan A Loan Facility A Loan Paid Paid Balance By --------- -------------- ------------ ---------------- --------- --------- --------- -------------
FIFTH RESTATED CREDIT AGREEMENT PAGE 108 115 Exhibit D-1 COMMITTED FACILITY B NOTE $_____________ Dallas, Texas July 5, 1994 FOR VALUED RECEIVED, the undersigned, Snyder Oil Corporation, a Delaware corporation ("Maker"), hereby promises to pay to the order of (Name of Bank or Lending Office) ("Payee"), at the offices of NationsBank of Texas, N.A., as Agent (herein so called) for Payee and the other Banks hereinafter described at the offices of Agent, 901 Main St., 49th Floor, Dallas, Texas, 75202, Dallas County, Texas, the principal sum of (Amount of such Bank's Facility B Commitment) ($_____________), or so much thereof as may be advanced and outstanding, together with interest, as hereinafter described. This Committed Facility B Note has been executed and delivered pursuant to, and is subject to and governed by, the terms of that certain Fifth Restated Credit Agreement dated June 30, 1994, (as hereafter renewed, extended, amended, or supplemented, the "Agreement"), among Maker, Payee, and the other Banks named therein and is one of the "Committed Facility B Notes" referred to therein. Unless otherwise defined herein or unless the context hereof otherwise requires, each term used herein with its initial letter capitalized has the meaning given to such term in the Agreement. Maker also promises to pay interest on the unpaid principal amount hereof in like money at the offices of Agent above referenced from the date hereof at the rates applicable to Committed Facility B Loans provided in the Agreement. Accrued interest shall be due and payable on the expiration of each Interest Period with respect to those Loans which are subject to the Interest Period then expiring. The principal balance of the Loans evidenced by this Committed Facility B Note shall be paid at the times and in the amounts required by Sections 2.10(a), 3.2, 4.5 and 10.4 of the Agreement. The entire outstanding principal balance hereof and all accrued but unpaid interest therein shall be due and payable in full on the Facility B Termination Date. Upon and subject to the terms and conditions of the Agreement, Maker shall be entitled to prepay the principal of or interest on this Committed Facility B Note from time to time and at any time, in whole or in part. Upon the occurrence and continuance of an Event of Default, and upon the conditions stated in the Agreement, the holder hereof may, at its option, declare the entire unpaid principal of and accrued interest on this Committed Facility B Note immediately due and payable (provided that, upon the occurrence of certain Events of Default, and upon the conditions stated in the Agreement, such acceleration shall be automatic), without notice (except as otherwise required by the Agreement), demand, or presentment, all of which are FIFTH RESTATED CREDIT AGREEMENT PAGE 109 116 hereby waived, and the holder hereof shall have the right to offset against this Committed Facility B Note any sum or sums owed by the holder hereof to Maker. All past-due principal of and, to the extent permitted by law, accrued interest on this Committed Facility B Note shall, at the option of the holder hereof, bear interest at the lesser of (a) the Maximum Lawful Rate and (b) the Base Rate plus 4% until paid. Notwithstanding the foregoing, if at any time, any rate of interest calculated under Section 2.6(a), (b) or (c) of the Agreement (the "Contract Rate") exceeds the Maximum Lawful Rate, the rate of interest hereunder shall be limited to the Maximum Lawful Rate, but any subsequent reductions in the Contract Rate shall not reduce the rate of interest on this Committed Facility B Note below the Maximum Lawful Rate until the total amount of interest accrued equals the amount of interest which would have accrued (including the amount of interest which would have accrued prior to the payment or prepayment of any portion of this Committed Facility B Note) if the Contract Rate had at all times been in effect. In the event that at maturity (stated or by acceleration), or at final payment of this Committed Facility B Note, the total amount of interest paid or accrued on this Committed Facility B Note is less than the amount of interest which would have accrued if the Contract Rate had at all times been in effect with respect thereto, then at such time the Maker shall pay to the holder of this Committed Facility B Note an amount equal to the difference between (a) the lesser of the amount of interest which would have accrued if the Contract Rate had at all times been in effect and the amount of interest which would have accrued if the Maximum Lawful Rate had at all times been in effect, and (b) the amount of interest actually paid or accrued on this Committed Facility B Note. SNYDER OIL CORPORATION, a Delaware corporation By:_______________________________ Its:______________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 110 117 COMMITTED FACILITY B LOANS, MATURITIES, AND PAYMENTS OF PRINCIPAL AND INTEREST
Rate of Interest Amount of Maturity of Applicable to Committed Committed Committed Amount of Amount of Unpaid Borrowing Facility B Facility B Facility B Principal Interest Principal Notation Made Date Loan Loan Loan Paid Paid Balance By --------- ---------- ----------- ------------- --------- --------- --------- -------------
FIFTH RESTATED CREDIT AGREEMENT PAGE 111 118 Exhibit D-2 COMPETITIVE BID FACILITY B NOTE $_______________ Dallas, Texas July 5, 1994 FOR VALUED RECEIVED, the undersigned, Snyder Oil Corporation, a Delaware corporation ("Maker"), hereby promises to pay to the order of (Name of Bank or Lending Office) ("Payee"), at the offices of NationsBank of Texas, N.A., as Agent (herein so called) for Payee and the other Banks hereinafter described at the offices of Agent, 901 Main St., 49th Floor, Dallas, Texas 75202, Dallas County, Texas, the principal sum of (Amount of such Bank's Facility B Commitment) ($___________), or so much thereof as may be advanced and outstanding, together with interest, as hereinafter described. This Competitive Bid Facility B Note has been executed and delivered pursuant to, and is subject to and governed by, the terms of that certain Fifth Restated Credit Agreement dated June 30, 1994, (as hereafter renewed, extended, amended, or supplemented the "Agreement") among Maker, Payee, and the other Banks named therein and is one of the "Competitive Bid Facility B Notes" referred to therein. Unless otherwise defined herein or unless the context hereof otherwise requires, each term used herein with its initial letter capitalized has the meaning given to such term in the Agreement. Maker also promises to pay interest on the unpaid principal amount hereof in like money at the offices of Agent above referenced from the date hereof at the rates applicable to Competive Bid Facility A Loans provided in the Agreement and in the applicable Competitive Bids under which Competitive Bid Facility B Loans outstanding hereunder are made. Accrued interest shall be due and payable on the expiration of each Interest Period with respect to those Loans which are subject to the Interest Period then expiring. The principal balance of the Competitive Bid Facility B Loans evidenced by this Competitive Bid Facility A Note shall be paid at the times and in the amounts required by Sections 2.10(a), 3.2, 4.5 and 10.4 of the Agreement. The entire outstanding principal balance hereof and all accrued but unpaid interest therein shall be due and payable in full on the Facility B Termination Date. The amount and type of each Competitive Bid Facility B Loan made by the Bank to the Maker and the maturity thereof, the rate of interest applicable thereto and all payments made on account of principal and interest hereof, shall be recorded by the Bank and, prior to any transfer hereof, endorsed on the grid attached hereto which is part of this Competitive Bid Facility B Note. FIFTH RESTATED CREDIT AGREEMENT PAGE 112 119 Upon and subject to the terms and conditions of the Agreement, Maker shall be entitled to prepay the principal of or interest on this Competitive Bid Facility B Note from time to time and at any time, in whole or in part. Upon the occurrence and continuance of an Event of Default, and upon the conditions stated in the Agreement, the holder hereof may, at its option, declare the entire unpaid principal of and accrued interest on this Note immediately due and payable (provided that, upon the occurrence of certain Events of Default, and upon the conditions stated in the Agreement, such acceleration shall be automatic), without notice (except as otherwise required by the Agreement), demand, or presentment, all of which are hereby waived, and the holder hereof shall have the right to offset against this Note any sum or sums owed by the holder hereof to Maker. All past-due principal of and, to the extent permitted by law, accrued interest on this Competitive Bid Facility B Note shall, at the option of the holder hereof, bear interest at the lesser of (a) the Maximum Lawful Rate and (b) the Base Rate plus 4% until paid. Notwithstanding the foregoing, if at any time, any rate of interest calculated under Section 2.6(a), (b) or (c) of the Agreement (the "Contract Rate") exceeds the Maximum Lawful Rate, the rate of interest hereunder shall be limited to the Maximum Lawful Rate, but any subsequent reductions in the Contract Rate shall not reduce the rate of interest on this Competitive Bid Facility B Note below the Maximum Lawful Rate until the total amount of interest accrued equals the amount of interest which would have accrued (including the amount of interest which would have accrued prior to the payment or prepayment of any portion of this Competitive Bid Facility B Note) if the Contract Rate had at all times been in effect. In the event that at maturity (stated or by acceleration), or at final payment of this Competitive Bid Facility B Note, the total amount of interest paid or accrued on this Competitive Bid Facility B Note is less than the amount of interest which would have accrued if the Contract Rate had at all times been in effect with respect thereto, then at such time the Maker shall pay to the holder of this Competitive Bid Facility B Note an amount equal to the difference between (a) the lesser of the amount of interest which would have accrued if the Contract Rate had at all times been in effect and the amount of interest which would have accrued if the Maximum Lawful Rate had at all times been in effect, and (b) the amount of interest actually paid or accrued on this Facility B Note. SNYDER OIL CORPORATION, a Delaware corporation By:_______________________________ Its:______________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 113 120 COMPETITIVE BID FACILITY B LOANS, MATURITIES, AND PAYMENTS OF PRINCIPAL AND INTEREST
Amount of Maturity of Rate of Interest Competitive Competitive Applicable to Amount of Amount of Unpaid Borrowing Bid Facility B Bid Facility Competitive Bid Principal Interest Principal Notation Made Date Loan B Loan Facility B Loan Paid Paid Balance By --------- -------------- ------------ ---------------- --------- --------- --------- -------------
FIFTH RESTATED CREDIT AGREEMENT PAGE 114 121 Exhibit E CERTIFICATE OF OWNERSHIP INTEREST This Certificate of Ownership Interest (this "Certificate") is executed and delivered pursuant to that certain Fifth Restated Credit Agreement dated June 30, 1994 but effective for all purposes as of July 5, 1994 (the "Agreement"), by and among Snyder Oil Corporation, as Borrower, NationsBank of Texas, N.A., as Agent and certain other Banks named therein. Unless otherwise defined herein, all capitalized terms shall have the meanings given such terms in the Agreement. In order to induce each Bank to enter into the Agreement and to make Loans thereunder, Borrower hereby represents and warrants to each Bank that (a) with the exception of (i) oil and gas properties and Related Assets which are clearly identified as being owned by Unrestricted Subsidiaries, and (ii) oil and gas properties and Related Assets the disposition of which was permitted under Section 9.5 of the Existing Credit Agreement, Borrower and the Restricted Subsidiaries hold valid and indefeasible title, beneficially and of record, subject only to Permitted Encumbrances, to the working interests and net revenue interests in and to all material oil and gas properties which are set forth in the most recent Reserve Report delivered to Banks pursuant to the Existing Credit Agreement, and (b) Borrower and the Restricted Subsidiaries hold valid and indefeasible title, subject only to Permitted Encumbrances, to all material Related Assets which are the subject of the most recent Related Asset Report delivered to the Banks pursuant to the Existing Credit Agreement. Borrower acknowledges and agrees that the Banks are relying on this Certificate and the representations and warranties hereon contained in entering into the Agreement and committing to make Loans thereunder, and but for Borrower's execution and delivery of this Certificate, Banks would not enter into the Agreement and commit make Loans to Borrower thereunder. Executed the ____ day of _______, 1994. SNYDER OIL CORPORATION, a Delaware corporation By:_____________________________________ Its:____________________________________ FIFTH RESTATED CREDIT AGREEMENT PAGE 115 122 SCHEDULE 1 SUBSIDIARIES OF SNYDER OIL CORPORATION as of June 30, 1994 Snyder Oil Corporation, a Delaware corporation 1. SOCO Holdings, Inc., a Delaware corporation a. Mexican Flats Service Company, a Delaware corporation b. Western Transmission Corporation, a Delaware corporation c. Wyoming Gathering and Production Company, a Delaware corporation d. Snyder Acquisition Corporation, a Texas corporation e. Snyder Gas Marketing, Inc., a Delaware corporation 2. Institutional Services, Inc., a Delaware corporation 3. SOCO Thomasville, Inc., a Delaware corporation a. Snyder 3300 Limited Partnership, a Texas limited partnership b. Snyder Sourgasco Limited Partnership, a Texas limited partnership 4. Thomasville Energy Corporation, a Delaware corporation 5. SOCO Technologies, Inc., a Delaware corporation 6. SOCO Wattenberg Corporation, a Delaware corporation 7. SOCO California Properties, Inc., a Delaware corporation 8. SOCO International, Inc., a Delaware corporation a. SOCO Tunisia, Inc. a Delaware corporation b. SOCO Perm Russia, Inc., a Delaware corporation c. SOCO Mongolia, Inc., a Delaware corporation d. SOCO Australia Limited, a British Virgin Islands corporation (i) SOCO Australia Pty Limited, an Australian corporation 9. Snyder Fluid Technologies, Inc., a Delaware corporation 10. SOCO Gas Systems, Inc., a Delaware corporation FIFTH RESTATED CREDIT AGREEMENT PAGE 116 EX-4.3 3 FORM OF INDENTURE--SENIOR INDEBTEDNESS 1 EXHIBIT 4.3 ================================================================================ SNYDER OIL CORPORATION AND ________________________________________, TRUSTEE _______________ INDENTURE DATED AS OF _______________, 19__ ________________ DEBT SECURITIES ================================================================================ 2 SNYDER OIL CORPORATION RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED AS OF __________, 19__ ________________
Section of Trust Indenture Section(s) of Act of 1939 Indenture ----------- --------- Section 310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610 Section 311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 Section 312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c) Section 313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d) Section 314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Section 315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c) (d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1) (d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2) (d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3) (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 Section 316 (a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508 Section 317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003 Section 318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
_____________ Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. 3 TABLE OF CONTENTS PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CEDEL or CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
_____________ Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. -i- 4 Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Security Register and Security Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SECTION 102. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 8 SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SECTION 105. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 108. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
-ii- 5 ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 204. Form of Legend for Book-Entry Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . . . . . . . . . . . . . . . . . . 34 SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 ARTICLE FIVE REMEDIES SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . 37 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . 38 SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
-iii- 6 SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . . . . . 47 SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . . . . . 52 SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 54 SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . . . . . 55 SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 56
-iv- 7 SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 57 SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 60 ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . 62 SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 66 SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . . . . 70 SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
-v- 8 ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 1301. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 SECTION 1302. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 SECTION 1303. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 SECTION 1304. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . 73 SECTION 1306. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1 EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
-vi- 9 INDENTURE, dated as of _________________, 19__ between SNYDER OIL CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal office at 777 Main Street, Suite 2500, Fort Worth, Texas 76102, and ____________________, a ____________________ duly organized and existing under the laws of _______________, as Trustee (herein called the "Trustee"), the office of the Trustee at which at the date hereof its corporate trust business is principally administered being ________________________. RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and, except as otherwise herein expressly provided, the term "generally -1- 10 accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; and (3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in Section 102. "Act", when used with respect to any Holder, has the meaning specified in Section 105. "Additional Amounts" means any additional amounts that are required by a Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to such Holders. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Authenticating Agent" means any Person, which may include the Company, authorized by the Trustee to act on behalf of the Trustee pursuant to Section 614 to authenticate Securities of one or more series. "Authorized Newspaper" means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day. "Bearer Security" means any Security in the form established pursuant to Section 201 which is payable to bearer, including, without limitation, unless the context otherwise indicates, a Security in temporary or permanent global bearer form. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board. -2- 11 "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Book-Entry Security" means a Security bearing the legend specified in Section 204, evidencing all or part of a series of Securities, issued to the Depository for such series or its nominee, and registered in the name of such Depository or nominee. Book-Entry Securities shall not be deemed to be securities in global form for purposes of Sections 201 and 203 and Article Three of this Indenture. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close. "CEDEL" or "CEDEL S.A." means Centrale de Livraison De Valeurs Mobiliers S.A., or, if any time after the execution of this instrument, Centrale de Livraison de Valeurs Mobiliers S.A. is not existing and performing the duties now being performed by it, then the successor Person performing such duties. "Certification Date" means with respect to Securities of any series (i) if Bearer Securities of such series are not to be initially represented by a temporary global Security, the date of delivery of the definitive Bearer Security and (ii), if Bearer Securities of such series are initially represented by a temporary global Security, the earlier of (A) the Exchange Date with respect to Securities of such series and (B), if the first Interest Payment Date with respect to Securities of such series is prior to such Exchange Date, such Interest Payment Date. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Depositary" has the meaning specified in Section 304. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant -3- 12 Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the principal office of the Trustee in ________, _____________ at which at any particular time its corporate trust business shall be principally administered. "coupon" means any interest coupon appertaining to a Bearer Security. "Defaulted Interest" has the meaning specified in Section 307. "Depository" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Book-Entry Securities, the clearing agency registered under the Securities Exchange Act of 1934, as amended, specified for that purpose as contemplated by Section 301. "Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts. "Euro-clear" means the operator of the Euro-clear System. "Event of Default" has the meaning specified in Section 501. "Holder", when used with respect to any Security, means in the case of a Registered Security the Person in whose name the Security is registered in the Security Register and in the case of a Bearer Security the bearer thereof and, when used with respect to any coupon, means the bearer thereof. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301. "interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Judgment Currency" has the meaning specified in Section 506. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as -4- 13 therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. "Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or Assistant Secretary of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (c) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether a quorum is present at a meeting of Holders of Securities, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the principal amount thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal amount of a Security -5- 14 denominated in a foreign currency shall be the U.S. dollar equivalent, determined by the Company on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent, determined on the date of original issuance of such Security, of the amount determined as provided in clause (i) above), of such Security and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver or upon any such determination as to the presence of a quorum, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person, which may include the Company, authorized by the Company to pay the principal of (and premium, if any) or interest on any one or more series of Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified in accordance with Section 301 subject to the provisions of Section 1002. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which a mutilated, destroyed, lost or stolen coupon appertains, as the case may be. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Registered Security" means any Security in the form established pursuant to Section 201 which is registered in the Security Register. -6- 15 "Regular Record Date" for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 301, or, if not so specified, the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month or the fifteenth day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day shall be a Business Day. "Required Currency" has the meaning specified in Section 506. "Responsible Officer", when used with respect to the Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any Vice President, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Security Register" and "Security Registrar" have the respective meanings specified in Section 305. "Special Record Date" for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. -7- 16 "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905. "United States" means the United States of America (including the States and the District of Columbia) and its "possessions", which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. "United States Alien" means any Person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien or foreign fiduciary of an estate or trust, or a foreign partnership. "U.S. Government Obligations" has the meaning specified in Section 401. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". "Yield to Maturity", when used with respect to any Original Issue Discount Security, means the yield to maturity, if any, set forth on the face thereof. SECTION 102. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings: "Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States Code. "indenture securities" means the Securities. "indenture security holder" means a Holder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. -8- 17 "obligor" on the indenture securities means the Company or any other obligor on the Securities. All the other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture Act and not otherwise defined herein have the meanings assigned to them therein. SECTION 103. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that each Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with. SECTION 104. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with -9- 18 respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 105. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at a meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such records. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding of any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1306. The Company may set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later -10- 19 of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation. If a record date is fixed, those persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled with respect to such Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register. (d) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary or exhibited to it the Bearer Securities therein described; or such facts may be proved by the certificate of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another certificate bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Trustee deems sufficient. (e) In determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 at the time the taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee for such Securities. -11- 20 (f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. Any consent or waiver of the Holder of any Security shall be irrevocable for a period of six months after the date of execution thereof, but otherwise any such Holder or subsequent Holder may revoke the request, demand, authorization, direction, notice, consent, waiver or other Act as to such Holder's Security or portion thereof. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date the Act becomes effective. SECTION 106. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Group, or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Secretary. SECTION 107. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) (a) to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (b) to Holders of Bearer Securities if published in an Authorized Newspaper in the City of New York and London or other capital city in Western Europe and in such other city or cities as may be specified in such Bearer Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. In case by reason of the suspension of regular mail service, or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities -12- 21 by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case in which notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security, shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. SECTION 108. Conflict With Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such provision of the Trust Indenture Act shall control. SECTION 109. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 110. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. -13- 22 SECTION 111. Separability Clause. In case any provision in this Indenture or in the Securities (or any coupon appertaining thereto) shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 112. Benefits of Indenture. Nothing in this Indenture or in the Securities (or any coupon appertaining thereto), express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 113. Governing Law. This Indenture and the Securities (or any coupon appertaining thereto) shall be governed by and construed in accordance with the laws of the State of New York. SECTION 114. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or coupons appertaining thereto) payment of principal and interest (and premium and Additional Amounts, if any,) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 115. Corporate Obligation. No recourse may be taken, directly or indirectly, against any incorporator, subscriber to the capital stock, shareholder, officer, director or employee of the Company or the Trustee or of any predecessor or successor of the Company or the Trustee with respect to the Company's obligations on the Securities or any coupons appertaining thereto or the obligations of the Company or the Trustee under this Indenture or any certificate or other writing delivered in connection herewith. -14- 23 ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons appertaining thereto shall be in substantially such form or forms (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons appertaining thereto, as evidenced by their execution of the Securities or coupons appertaining thereto. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence. A copy of the Board Resolution establishing the form or forms of Securities or coupons appertaining thereto of any series (or any such temporary global Security) shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities (or any such temporary global Security) or coupons appertaining thereto. Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons appertaining thereto attached. The definitive Securities and coupons appertaining thereto, if any, shall be printed lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons appertaining thereto, as evidenced by their execution thereof. SECTION 202. Form of Trustee's Certificate of Authentication. The Trustee's certificate of authentication shall be in substantially the following form: -15- 24 "This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. _______________________________________ as Trustee By_____________________________________ Authorized Signatory." SECTION 203. Securities in Global Form. If Securities of a series are issuable in global form, as contemplated by Section 301, then, notwithstanding clause (10) of Section 301 and the provisions of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 103 and need not be accompanied by an Opinion of Counsel. The provisions of the last sentence of Section 303 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 103 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303. Notwithstanding the provisions of Sections 201 and 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and interest, on any Security in permanent global form shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company or of the -16- 25 Trustee shall treat a Person as the Holder of such principal amount of Outstanding Securities represented by a global Security as shall be specified in a written statement, if any, of the Holder of such global Security or, in the case of a global Bearer Security, of Euro-clear or CEDEL S.A., which is produced to the Security Registrar by such Holder. Global Securities may be issued in either registered or bearer form and in either temporary or permanent form. Permanent Global Securities will be issued in definitive form. SECTION 204. Form of Legend for Book-Entry Securities. Any Book-Entry Security authenticated and delivered hereunder shall bear a legend in substantially the following form: "This Security is a Book-Entry Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in or pursuant to the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in such limited circumstances." ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange -17- 26 for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107); (3) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons appertaining thereto and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, and the Common Depositary for any global Security or Securities; (4) the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature and the extent to which, or the manner in which, any interest payable on a temporary global Security on any Interest Payment Date will be paid if other than in the manner provided in Section 304; (5) the date or dates on which the principal (and premium, if any) of the Securities of the series is payable or the method of determination thereof; (6) the rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and, if other than as set forth in Section 101, the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date; (7) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to, the Securities of the series shall be payable; (8) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option; (9) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series shall be redeemed or purchased in whole or in part pursuant to such obligation; -18- 27 (10) the denomination in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denomination in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000; (11) the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and interest on, and any Additional Amounts with respect to, the Securities of the series shall be payable if other than the currency of the United States of America; (12) if the principal of (and premium,if any) or interest on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to be payable, the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and interest on, and any Additional Amounts with respect to, Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made; (13) if the amount of payments of principal of (and premium, if any) or interest on, and any Additional Amounts with respect to, the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (14) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (15) whether the Securities of the series shall be issued upon original issuance in whole or in part in the form of one or more Book-Entry Securities and, in such case, (a) the Depository with respect to such Book-Entry Security or Securities; and (b) the circumstances under which any such Book-Entry Security may be exchanged for Securities registered in the name of, and any transfer of such Book-Entry Security may be registered to, a Person other than such Depository or its nominee, if other than as set forth in Section 305; (16) any additional means of satisfaction and discharge of this Indenture with respect to Securities of the series pursuant to Section 401, any additional conditions to discharge pursuant to Section 401 or 403 and the application, if any, of Section 403; (17) any deletions or modifications of or additions to the Events of Default set forth in Section 501 or covenants of the Company set forth in Article Ten pertaining to the Securities of the series; and -19- 28 (18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto. At the option of the Company, interest on the Securities of any series that bears interest may be paid by mailing a check to the address of any Holder as such address shall appear in the Security Register. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action together with such Board Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. SECTION 302. Denominations. The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Registered Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of such series denominated in Dollars shall be issuable in the denominations of $5,000 and any integral multiple thereof. Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, any Securities of a series denominated in a currency other than Dollars shall be issuable in denominations that are the equivalent, as determined by the Company by reference to the noon buying rate in The City of New York for cable transfers for such currency, as such rate is reported or otherwise made available by the Federal Reserve Bank of New York, on the applicable issue date for such Securities, of $1,000 and any integral multiple thereof. SECTION 303. Execution, Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon or affixed thereto attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Coupons shall bear the facsimile signature of the President or any Vice President of the Company. -20- 29 Securities and coupons appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, together with any coupons appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise; provided, however, that, in connection with its sale, during the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may (other than a temporary global security in bearer form delivered as provided in Section 304) be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A to this Indenture, or in such other form of certificate as shall contain information then required by federal income tax laws and, if applicable, federal securities laws, dated no earlier than the Certification Date. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with sale, during the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations) of such beneficial owner's interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating, (a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; (b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and -21- 30 (c) that such Securities, together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, except as such enforcement is subject to the effect of (i) bankruptcy, insolvency, reorganization or other law relating to or affecting creditors' rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Each Registered Security shall be dated the date of its authentication; and each Bearer Security shall be dated as of the date of issuance of the first Bearer Security of such series to be issued. No Security or coupon or coupons appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 103 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. SECTION 304. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons appertaining thereto or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of any series issuable as Bearer Securities, such temporary Securities may be in -22- 31 global form. A temporary Bearer Security shall be delivered only in compliance with the conditions set forth in Section 303. Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series; provided, however, that no Bearer Security shall be issued in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security (including interests in a permanent Global Security) shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Any temporary global Bearer Security and any permanent global security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the "Common Depositary") for the benefit of Euro-clear and CEDEL S.A. for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct). Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the "Exchange Date"), the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of that series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged; provided however, that unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euro-clear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL S.A. as to the portion of such temporary global Security held for its account then to be exchanged, -23- 32 each in the form set forth in Exhibit B to this Indenture. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and if any combination thereof is so specified, as requested by the beneficial owner thereof. Unless otherwise specified in the temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged on the Exchange Date for definitive Securities (and where the form of the definitive Securities is not specified by the Holder, for an interest in a permanent global Security) of the same series and of like tenor unless, on or prior to the Exchange Date, such beneficial owner has not delivered to Euro-clear or CEDEL S.A. as the case may be, a certificate in the form set forth in Exhibit A to this Indenture dated no earlier than the Certification Date, copies of which certificate shall be available from the offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent and after the Exchange Date, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities (and where the form of the definitive Securities is not specified by the Holder, for an interest in a permanent global Security) of the same series and of like tenor following such beneficial owner's delivery to Euro-clear or CEDEL S.A. as the case may be, of a certificate in the form set forth in Exhibit A to this Indenture dated no earlier than the Certificate Date. Unless otherwise specified in such temporary global Security, any exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euro-clear or CEDEL S. A. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States. Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series shall be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in the form set forth in Exhibit B to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment and who have each delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the form set forth in Exhibit A to this Indenture. Any interest so received by Euro-clear or CEDEL S.A. and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003. -24- 33 SECTION 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept for each series of Securities at one of the offices or agencies maintained pursuant to Section 1002 a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities of such series. The Trustee is hereby initially appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Bearer Securities may not be issued in exchange for Registered Securities. At the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (a) any Regular Record Date and -25- 34 before the opening of business at such office or agency on the relevant Interest Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security are entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities of that series in an aggregate principal amount equal to the principal amount of such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered from time to time in accordance with instructions given to the Trustee and the Common Depositary (which instructions shall be in writing but need not comply with Section 103 or be accompanied an Opinion of Counsel) by the Common Depositary or such other depositary or Common Depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or in part, for definitive Securities of the same series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, a like aggregate principal amount of other definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of that series is to be redeemed and ending on the relevant Redemption Date; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. Promptly following any such exchange in part, such permanent global Security shall be returned by the Trustee to the Common Depositary or such other depositary or Common Depositary referred to above in accordance with the instructions of -26- 35 the Company referred to above. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (a) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchange pursuant to Section 304, 906 or 1107 not involving any transfer. The Company shall not be required (a) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series selected for redemption and ending at the close of business on (i) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (ii) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption, or if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption or (b) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (c) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption. -27- 36 Notwithstanding the foregoing and except as otherwise specified pursuant to Section 301, any Book-Entry Security shall be exchangeable pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities registered in the name of, and a transfer of a Book-Entry Security of any series may be registered to, any Person other than the Depository for such Security or its nominee only if (a) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Book- Entry Security or if at any time such Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (b) the Company executes and delivers to the Trustee a Company Order that such Book-Entry Security shall be so exchangeable and the transfer thereof so registrable or (c) there shall have occurred and be continuing an Event of Default, or an event which after notice or lapse of time would be an Event of Default, with respect to the Securities of such series. Upon the occurrence in respect of any Book-Entry Security of any series of any one or more of the conditions specified in clauses (a), (b) or (c) of the preceding sentence or such other conditions as may be specified, such Book-Entry Security may be exchanged for Securities registered in the names of, and the transfer of such Book-Entry Security may be registered to, such Persons (including Persons other than the Depository with respect to such series and its nominees) as such Depository shall direct. Notwithstanding any other provision of this Indenture, any Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry Security and shall bear the legend specified in Section 204 except for any Security authenticated and delivered in exchange for, or upon registration of transfer of, a Book-Entry Security pursuant to the preceding sentence. SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security. If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon appertaining thereto and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains. -28- 37 In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security; provided, however, that the principal of and any premium and interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fee and expenses of the Trustee) connected therewith. Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security to which a destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupons shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons. SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the option of the Company (a) in the case of Registered Securities, by check mailed or delivered to the address of any Person entitled thereto as such address shall appear in the Security Register, or (b) in the case of Bearer Securities, except as otherwise provided in Section 1002, upon presentation and surrender of the appropriate coupon appertaining thereto at an office or agency of the Company in a Place of Payment located outside the United States or by transfer to an account maintained by the payee with a bank located outside the United States. Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: -29- 38 (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of, in exchange for or in lieu of, any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 308. Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such -30- 39 Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest on such Registered Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Book-Entry Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depository or impair, as between a Depository and holders of beneficial interests in any Book-Entry Security, the operation of customary practices governing the exercise of the rights of the Depository (or its nominee) as Holder of such Book-Entry Security. SECTION 309. Cancellation. All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons so delivered shall be held by the Trustee and, upon instruction by a Company Order, shall be cancelled or held for reissuance. Bearer Securities and unmatured coupons held for reissuance may be reissued only in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the same series and like tenor or the related coupons pursuant to Section 306. All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for all purposes of this Indenture and the Securities. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order. In the case of any temporary global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, -31- 40 the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit B hereto, to be given by the Euro-clear operator or CEDEL S.A., have been duly presented to the Trustee for such Securities by the Euro-clear operator or CEDEL S.A. as the case may be. Permanent global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full. SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to Securities of a series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to Securities of such series, when (1) either (A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) with respect to all Outstanding Securities of such series and any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation, the Company has deposited or caused to be deposited with the -32- 41 Trustee as trust funds, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, for the purpose money or U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as will, together with the income to accrue thereon, without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all Outstanding Securities of such series and coupons appertaining thereto not theretofore delivered to the Trustee for cancellation for principal (and premium and Additional Amounts, if any) and interest to the Stated Maturity or any Redemption Date contemplated by the penultimate paragraph of this Section, as the case may be; or (C) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to the Securities of such series; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; (3) the Company has complied with any other conditions specified pursuant to Section 301 to be applicable to the discharge of Securities of such series pursuant to this Section 401; and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Outstanding Securities of such series have been complied with. For the purposes of this Indenture, "U.S. Government Obligations" means direct non-callable obligations of, or non-callable obligations the payment of principal of and interest on which is guaranteed by, the United States of America, or to the payment of which obligations or guarantees the full faith and credit of the United States of America is pledged, or beneficial interests in a trust the corpus of which consists exclusively of money or such obligations or a combination thereof. If any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Outstanding Securities of such series pursuant to this Section 401, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, except for a discharge pursuant to subclause -33- 42 (A) of clause (1) of this Section, the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest and Additional Amounts for the payment of which such money has been deposited with the Trustee. SECTION 403. Discharge of Liability on Securities of Any Series. If this Section is specified, as contemplated by Section 301, to be applicable to Securities of any series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of such series, the obligation of the Company under this Indenture and the Securities of such series to pay the principal of (and premium, if any) and interest on Securities of such series, and any coupon appertaining thereto, shall cease, terminate and be completely discharged and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging such satisfaction and discharge, when (1) the Company has complied with the provisions of Section 401 of this Indenture (other than any additional conditions specified pursuant to Sections 301 and 401(3)) with respect to all Outstanding Securities of such series, (2) the Company has delivered to the Trustee a Company Request requesting such satisfaction and discharge, (3) the Company has complied with any other conditions specified pursuant to Section 301 to be applicable to the discharge of Securities of such series pursuant to this Section 403, and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the discharge of the indebtedness on the Outstanding Securities of such series have been complied with. Upon the satisfaction of the conditions set forth in this Section with respect to all the Outstanding Securities of any series, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no -34- 43 longer be binding upon, or applicable to, the Company; provided, however, that, the Company shall not be discharged from any payment obligations in respect of Securities of such series which are deemed not to be Outstanding under clause (c) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law or pursuant to Section 305 or 306. SECTION 404. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations deposited with respect to Securities of any series in accordance with Section 401 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture with respect to the Securities of such series and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 401; provided, however, that if the Company has made any payment of principal or interest of (or premium, if any), and any Additional Amounts with respect to, on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular series or it is specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing such series of Securities or in the form of Security for such series: (1) default in the payment of any interest or any Additional Amounts upon any Security of that series when such interest or Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or -35- 44 (3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 60 days; or (4) default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (6) the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or -36- 45 (7) any other Event of Default provided with respect to Securities of that series. Notwithstanding the foregoing provisions of this Section 501, if the principal of (and premium, if any) or any interest on, or Additional Amounts with respect to, any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency (or currencies) is (or are) not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such other currency, as determined by the Trustee by reference to the noon buying rate in The City of New York for cable transfers for such currency ("Exchange Rate"), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 501, any payment made under such circumstances in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture. SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to any Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of (a) the series affected by such default (in the case of an Event of Default described in clause (1), (2), (3) or (7) of Section 501) or (b) all series of Securities (in the case of other Events of Default) may declare the principal amount (or, if any such Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of the series affected by such default or all series, as the case may be, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay -37- 46 (A) all overdue interest on, and any Additional Amounts with respect to, all Securities of that series (or of all series, as the case may be) and any coupons appertaining thereto, (B) the principal of (and premium, if any, on) any Securities of that series (or of all series, as the case may be) which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), (C) to the extent that payment of such interest is lawful, interest upon overdue interest and any Additional Amounts at the rate or rates prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of the principal of Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any installment of interest on, or any Additional Amounts with respect to, any Security of any series and any coupons appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 60 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and -38- 47 coupons for principal (and premium, if any) and interest and Additional Amounts and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest and Additional Amounts, at the rate or rates prescribed therefor in such Securities (or in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of Original Issue Discount Securities) of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities) (and premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities or any coupons appertaining thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and -39- 48 (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceedings. SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claim under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any), interest or any Additional Amounts, upon presentation of the Securities or coupons, or both as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 607; SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest and any Additional Amounts on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any), interest and Additional Amounts, respectively; and -40- 49 THIRD: The balance, if any, to the Person or Persons entitled thereto. To the fullest extent allowed under applicable law, if for the purpose of obtaining judgment against the Company in any court it is necessary to convert the sum due in respect of the principal of (or premium, if any) or interest on the Securities of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Business Day next preceding that on which final judgment is given. Neither the Company nor the Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to Holders of Securities under this Section caused by a change in exchange rates between the time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into the Required Currency to make payments under this Section to Holders of Securities, but payment of such judgment shall discharge all amounts owed by the Company on the claim or claims underlying such judgment. SECTION 507. Limitation on Suits. No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) an Event of Default with respect to Securities of such series shall have occurred and be continuing and such Holder has previously given written notice to the Trustee of such continuing Event of Default; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; -41- 50 it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Security or payment of such coupon on the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities or coupons to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee -42- 51 or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. With respect to Securities of any series, the Holders of a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities the Holders of a majority in principal amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, not relating to or arising under such an Event of Default, provided that in each such case (1) such direction shall not be in conflict with any rule of law or with this Indenture, and (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series relating to or arising under an Event of Default described in clause (3) or (7) of Section 501 and its consequences, and the Holders of a majority in principal amount of all Outstanding Securities may on behalf of the Holders of all Securities waive any other past default hereunder and its consequences, except in each case a default (1) in the payment of the principal of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Security, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. -43- 52 SECTION 514. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Security or the payment of any coupon on or after the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date). SECTION 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and -44- 53 (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series or of all series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. -45- 54 SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on, or any Additional Amount with, any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; -46- 55 (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. SECTION 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. -47- 56 SECTION 607. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on, or Additional Amounts with respect to, particular Securities. SECTION 608. Disqualification; Conflicting Interests. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article. (b) In the event that the Trustee shall fail to comply with the provisions of Subsection (a) of this Section with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register, notice of such failure. (c) For the purposes of this Section, the term "conflicting interest" shall have the meaning specified in Section 310(b) of the Trust Indenture Act and the Trustee shall comply -48- 57 with Section 310(b) of the Trust Indenture Act; provided, however, that there shall be excluded from the operation of Section 310 (b) (1) of the Trust Indenture Act with respect to the Securities of any series the Indenture dated as of June 1, 1968, as supplemented, between the Company and the Trustee, the Indenture dated as of February 5, 1986, as supplemented, between the Company and the Trustee, this Indenture with respect to the Securities of any series other than that series, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding sentence, the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act shall be applicable. SECTION 609. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 610. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. (b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. -49- 58 (d) If at any time: (1) the Trustee shall fail to comply with Section 608(a) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder of Securities, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. -50- 59 (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of -51- 60 such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against Company. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311 (b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311 (a) of the Trust Indenture Act to the extent indicated therein. SECTION 614. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange, registration of transfer or partial redemption or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee -52- 61 by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, or in the case of an Authenticating Agent with respect to Securities issuable as Bearer Securities, under the laws of any country in which such Bearer Securities may be offered; authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 or equivalent amount expressed in a foreign currency and subject to supervision or examination by federal or state authority or authority of such country. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607. -53- 62 If an appointment is made pursuant to this Section, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. _____________________________________________ As Trustee By __________________________________________ As Authenticating Agent By __________________________________________ Authorized Signatory Notwithstanding any provision of this Section 614 to the contrary, if at any time any Authenticating Agent appointed hereunder with respect to any series of Securities shall not also be acting as the Security Registrar hereunder with respect to any series of Securities, then, in addition to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall also be obligated: (i) to furnish to the Security Registrar promptly all information necessary to enable the Security Registrar to maintain at all times an accurate and current Security Register; and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from the Company the units of such foreign currency that are required to be determined by the Company pursuant to Section 302. ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. With respect to each series of Securities, the Company will furnish or cause to be furnished to the Trustee: (a) semi-annually, not more than 15 days after each Regular Record Date relating to that series (or, if there is no Regular Record Date relating to that series, on -54- 63 January 1 and July 1), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of that series as of such dates, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content, such list to be dated as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar, if so acting. SECTION 702. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of each series contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of each series received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. (b) Holders of Securities may communicate pursuant to Section 312 (b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities. (c) Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b). SECTION 703. Reports by Trustee. (a) Within 60 days after May 15 of each year, commencing with the first May 15 following the issuance of the first series of Securities hereunder, the Trustee shall transmit by mail to Holders a brief report dated as of such May 15 that complies with Section 313(a) of the Trust Indenture Act. (b) The Trustee shall comply with Section 313(b) of the Trust Indenture Act. (c) Reports pursuant to this Section shall be transmitted by mail: (1) to all Holders of Registered Securities, as the names and addresses of such Holders appear in the Security Register; -55- 64 (2) to such Holders of Bearer Securities as have, within the two years preceding such transmissions, filed their names and addresses with the Trustee for that purpose; and (3) except in the case of reports pursuant to Subsection (b) of this Section, to each Holder of a Security whose name and address is preserved at the time by the Trustee, as provided in Section 702(a). (d) A copy of each report pursuant to Subsection (a) or (b) of this Section 703 shall, at the time of its transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 704. Reports by Company. The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a) of the Trust Indenture Act. ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest (including all Additional Amounts, if any) on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; -56- 65 (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 802. Successor Person Substituted. Upon any consolidation by the Company with or merger by the Company into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of such lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any coupons appertaining thereto (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or -57- 66 (3) to add any additional Events of Default with respect to all or any series of the Securities (and, if such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable); or (4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or (5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is adversely affected by such change in or elimination of such provision; or (6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or (7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (8) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such other provisions as may be made shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect. SECTION 902. Supplemental Indentures With Consent of Holders. With the consent of the Holders of a majority in principal amount of the Outstanding Securities of all series affected by such supplemental indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any -58- 67 manner the rights of the Holders of Securities of such series and any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, any Additional Amounts with respect thereto or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency or currencies (including composite currencies) in which, any Security or any premium or any interest thereon or Additional Amounts with respect thereto is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or (2) reduce the percentage in principal amount of Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or (3) modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of such series (which provision may be made pursuant to Section 301 without the consent of any Holder) or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(7). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. -59- 68 It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, immunities or liabilities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 905. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series and any coupons appertaining thereto so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series and any coupons appertaining thereto. -60- 69 ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any), interest on and any Additional Amounts with respect to the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due and Additional Amounts payable with respect to on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments, as are evidenced thereby as they severally mature. SECTION 1002. Maintenance of Office or Agency. If Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange for Registered Securities, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (b) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment (including payment of any Additional Amounts with respect to Bearer Securities of that series); provided, however, that if the Securities of that series are listed on the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (c) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where -61- 70 Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment (including payment of any Additional Amounts with respect to Bearer Securities of that series) at the office of any Paying Agent for such series located outside the United States, and the Company hereby appoints the Trustee as its office or agency to receive such presentations, surrenders, notices and demands. No payment of principal, premium or interest on, or Additional Amounts with respect to, Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States, nor shall any payments be made in respect of Bearer Securities or coupons appertaining thereto pursuant to the presentation to the Company or its designated Paying Agents within the United States; provided, however, that if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium and interest on any Bearer Security (including any Additional Amounts payable on securities of such series) shall be made at the office of the Company's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium, interest, or Additional Amounts as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 1003. Money for Securities Payments to be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities and any coupons appertaining thereto, it will, on or before each due date of the principal of (and premium, if any) or interest on or any Additional Amounts with respect to any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) -62- 71 or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities and any related coupons appertaining thereto, the Company will, on or before each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for three years after such principal (and premium, if any) or interest has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request, or (if then held by the -63- 72 Company) shall be discharged from such trust; and the Holder of such Security and coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company. SECTION 1004. Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. SECTION 1005. Maintenance of Properties. The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent that Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. SECTION 1006. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (b) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. -64- 73 SECTION 1007. Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof so long as any Security is outstanding hereunder, an Officers' Certificate, stating that a review of the activities of the Company during such year and of performance under this Indenture has been made under the supervision of the signers thereof and whether or not to the best of their knowledge the Company is in default in the fulfillment of any of its obligations under this Indenture, and if the Company shall be in default, specifying each such default known to them and the nature and status thereof. SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 to 1006, inclusive, or any covenant added for the benefit of any series of Securities as contemplated by Section 301 (unless otherwise specified pursuant to Section 301) if before or after the time for such compliance the Holders of a majority in principal amount of the Outstanding Securities of all series affected by such omission (acting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. SECTION 1009. Additional Amounts. If the Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series or any coupon appertaining thereto Additional Amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior -65- 74 to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of securities or coupons and the Company will pay to such Paying Agent the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article. SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption -66- 75 Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series or of the principal amount of global Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 107 to Holder of Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, are to be surrendered for payment of the Redemption Price, (6) that the redemption is for a sinking fund, if such is the case, -67- 76 (7) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons appertaining thereto maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, and (8) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made. A notice of redemption as contemplated by Section 107 need not identify particular Registered Securities to be redeemed. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. SECTION 1105. Deposit of Redemption Price. On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, and any Additional Amounts with respect to, all the Securities which are to be redeemed on that date. SECTION 1106. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be redeemed. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons appertaining thereto, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional Amounts) to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons appertaining thereto for such interest; and provided, further, that installments of interest whose Stated -68- 77 Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons appertaining thereto, or the surrender of such missing coupon or coupons appertaining thereto may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest (and any Additional Amounts with respect thereto) represented by coupons appertaining thereto shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons appertaining thereto. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue Discount Securities, the Securities' Yield to Maturity. SECTION 1107. Securities Redeemed in Part. Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and Stated Maturity, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. -69- 78 ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". Unless otherwise provided by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (b) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking payment shall be reduced accordingly. SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the -70- 79 manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. ARTICLE THIRTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 1301. Purposes for Which Meetings May Be Called. A meeting of Holders of Securities of any or all series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series. SECTION 1302. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1301, to be held at such time and at such place in ___________________________, in the Borough of Manhattan, the City of New York, or in London, as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 107, not less than 20 nor more than 180 days prior to the date fixed for the meeting (or, in the case of a meeting of Holders with respect to Securities of a series all or part of which are represented by a Book-Entry Security, not less than 20 nor more than 40 days). (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the Outstanding Securities of any series, shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1301, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in __________________, in the Borough of Manhattan, the City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section. -71- 80 SECTION 1303. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 1304. Quorum; Action. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1302(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum. Notwithstanding the foregoing, no meeting of Holders with respect to Securities of any series which is represented in whole or in part by a Book-Entry Security shall be adjourned to a date more than 90 days after the date on which notice of such meeting was originally given in accordance with Section 1302 unless the Trustee shall send out a new notice of meeting. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent or waiver which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage that is less than a majority in aggregate principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in aggregate principal amount of the Outstanding Securities of that series. -72- 81 Except as limited by the proviso to Section 902, any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the coupons appertaining thereto, whether or not present or represented at the meeting. SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a) The holding of Securities shall be proved in the manner specified in Section 105 and the appointment of any proxy shall be proved in the manner specified in Section 105 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 105 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 105 or other proof. (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1302(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting. (c) At any meeting each Holder of a Security of such series and each proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or as a proxy. (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1302 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice. SECTION 1306. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution -73- 82 and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that such notice was given as provided in Section 1302 and, if applicable, Section 1304. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. * * * This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. -74- 83 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. SNYDER OIL CORPORATION (CORPORATE SEAL) By:____________________________________ Name:_______________________________ Title:______________________________ _______________________________________ (CORPORATE SEAL) By:____________________________________ Name:_______________________________ Title:______________________________ -75- 84 STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) On the ____ day of _______________, 19__, before me personally came _________________________, to me known, who, being by me duly sworn, did depose and say that he is _______________________________ of SNYDER OIL CORPORATION, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. _______________________________________ Notary Public in Dallas County for the State of Texas My Commission Expires _________________ (NOTARIAL SEAL) STATE OF TEXAS ) ) ss: COUNTY OF DALLAS ) On the ____ day of _______________, 19__, before me personally came ____________________________, to me known, who, being by me duly sworn, did depose and say that he is _________________________________ of ____________________________________________________, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. _______________________________________ Notary Public in Dallas County for the State of Texas My Commission Expires _________________ (NOTARIAL SEAL) -76- 85 EXHIBIT A FORM OF CERTIFICATE TO BE GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF INTEREST IN A GLOBAL SECURITY SNYDER OIL CORPORATION (TITLE OF SECURITIES) (THE "SECURITIES") This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities that are held by the undersigned or held by you for the account of the undersigned (a) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States persons"), (b) are owned by United States person(s) that (i) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution hereby certifies, on its own behalf or through its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 as amended, and the regulations thereunder), or (c) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (c) above (whether or not also described in clause (a) or (b)) this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify that, except as set forth below, (a) in the case of debt securities, the Securities are beneficially owned by (i) non-U.S. person(s) or (ii) U.S. person(s) who purchased the Securities in transactions which did not require registration under the Act; or (b) in the case of equity securities, the Securities are owned by (i) non-U.S. person(s) (and such person(s) are not acquiring the Securities for the account or benefit of U.S. person(s)) or (ii) U.S. person(s) who purchased the Securities in a transaction which did not require registration under the Act. If this certification is being delivered in connection with the exercise of warrants pursuant to Section 230.902(m) of Regulation S under the Act, then this is further to certify that, except as set forth below, the Securities are being exercised by and on behalf A-1 86 of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the meaning given to it by Regulation S under the Act. As used herein, "United States" means the United States of America (including the States and District of Columbia); and its "possessions" including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certification excepts and does not relate to $______________ of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings. *Dated: __________________, 199__ NAME OF PERSON MAKING CERTIFICATION By:_______________________________ As, or as Agent for, the beneficial owner(s) of the Securities to which this Certificate relates By:_______________________________ As, or as Agent for, the financial institution (if any) through which a United States Person acquired the Securities to which this Certificate relates __________________________________ *To be dated no earlier than the Certification Date. A-2 87 EXHIBIT B FORM OF CERTIFICATION TO BE GIVEN BY THE EURO-CLEAR OPERATOR OR CEDEL SNYDER OIL CORPORATION (TITLE OF SECURITIES) (THE "SECURITIES") This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially to the effect set forth in the Indenture, dated as of ___________________, 199___ between Snyder Oil Corporation and ______________________________________, as of the date hereof, ( ) principal amount of the above captioned Securities (a) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States persons"), (b) is owned by United States persons that (i) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution has certified, on its own behalf or through its agent, that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (c) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or foreign financial institutions described in clause (c) above (whether or not also described in clause (a) or (b)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify with respect to the principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organizations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Indenture. We further certify (a) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global Security excepted in such certifications and (b) that as of the date hereof B-1 88 we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy hereof to any interested party in such proceedings. Dated:______________, 199__ (dated the Exchange Date or the Interest Payment Date) _______________________________________ as operator of the Euro-clear System or (CEDEL S.A.) By ____________________________________ B-2 EX-4.4 4 FORM OF INDENTURE--SUBORDINATED INDEBTEDNESS 1 EXHIBIT 4.4 ================================================================================ SNYDER OIL CORPORATION AND ________________________________________, TRUSTEE _______________ INDENTURE DATED AS OF _______________, 19__ ________________ SUBORDINATED DEBT SECURITIES ================================================================================ 2 SNYDER OIL CORPORATION RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED AS OF __________, 19__ ________________
Section of Trust Indenture Section(s) of Act of 1939 Indenture ----------- --------- Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 609 (a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610 Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 613 Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701, 702(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c) Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(c) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(d) Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 (c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a) (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 703(a) (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(b) (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c) (d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(a)(1) (d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(2) (d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601(c)(3) (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514 Section 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512 (a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508 Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503 (a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1003 Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
_____________ Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. 3 TABLE OF CONTENTS PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Affiliate; control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Authorized Newspaper . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Board of Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Board Resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Book-Entry Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 CEDEL or CEDEL S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Certification Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Common Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Company Request and Company Order . . . . . . . . . . . . . . . . . . . . . 4 Corporate Trust Office . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 coupon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Depository . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Designated Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . 4 Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
____________ Note: This table of contents shall not, for any purpose, be deemed to be a part of the Indenture. -i- 4 interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Interest Payment Date . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Judgment Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Junior Subordinated Payment . . . . . . . . . . . . . . . . . . . . . . . . 5 Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Non-Payment Event of Default . . . . . . . . . . . . . . . . . . . . . . . . 6 Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Officers' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Original Issue Discount Security . . . . . . . . . . . . . . . . . . . . . . 6 Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Payment Blockage Period . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Payment Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Permitted Junior Securities . . . . . . . . . . . . . . . . . . . . . . . . 7 Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Place of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Predecessor Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Refinance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Registered Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Regular Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Required Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Responsible Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Securities Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Security Register and Security Registrar . . . . . . . . . . . . . . . . . . 9 Senior Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Special Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 United States Alien . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . . . 10 Vice President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Wholly Owned Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 SECTION 102. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . 11 SECTION 103. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . 11 SECTION 104. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . 12
-ii- 5 SECTION 105. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 SECTION 106. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . 14 SECTION 107. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . 15 SECTION 108. Conflict With Trust Indenture Act . . . . . . . . . . . . . . . . . . 16 SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . 16 SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 SECTION 115. Corporate Obligation. . . . . . . . . . . . . . . . . . . . . . . . . 17 ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . 18 SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . 18 SECTION 204. Form of Legend for Book-Entry Securities. . . . . . . . . . . . . . . 19 ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . 19 SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . 23 SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . 25 SECTION 305. Registration, Registration of Transfer and Exchange. . . . . . . . . 27 SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . 30 SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . . . . . . 31 SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . 33 SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . 34 ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . 34 SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 36 SECTION 403. Discharge of Liability on Securities of Any Series . . . . . . . . . 36 SECTION 404. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 ARTICLE FIVE
-iii- 6 REMEDIES SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . 38 SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . 39 SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . 41 SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 42 SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . 43 SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . 44 SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 44 SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . 45 SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . 45 SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . 45 SECTION 512. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 45 SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . 46 SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . 47 ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . 47 SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 48 SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . 49 SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . 50 SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . 50 SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . 50 SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . 50 SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . 51 SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . 51 SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . 52 SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . 53 SECTION 612. Merger, Conversion, Consolidation or Succession to Business . . . . . 54 SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . 55 SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . 55 ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . 57 SECTION 702. Preservation of Information; Communications to Holders . . . . . . . 57
-iv- 7 SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 58 SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . 58 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . 59 SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . 59 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . 60 SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . 61 SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . 62 SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . 62 SECTION 905. Conformity With Trust Indenture Act . . . . . . . . . . . . . . . . . 62 SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . 63 ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . 63 SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . 63 SECTION 1003. Money for Securities Payments to be Held in Trust . . . . . . . . . . 65 SECTION 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 SECTION 1005. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . 66 SECTION 1006. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . 67 SECTION 1007. Statement by Officers as to Default . . . . . . . . . . . . . . . . . 67 SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . 67 SECTION 1009. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . 67 ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 68 SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . 68 SECTION 1103. Selection by Trustee of Securities to be Redeemed . . . . . . . . . . 69 SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . 69 SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . 70 SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . 70 SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . 71
-v- 8 ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . 72 SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . 72 SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . 72 ARTICLE THIRTEEN SUBORDINATION OF SECURITIES SECTION 1301. Securities Subordinate to Senior Indebtedness . . . . . . . . . . . . 73 SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . 73 SECTION 1303. No Payment When Designated Senior Indebtedness in Default . . . . . . 74 SECTION 1304. Payment Permitted if No Default . . . . . . . . . . . . . . . . . . . 75 SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness . . . . . . . 75 SECTION 1306. Provisions Solely to Define Relative Rights . . . . . . . . . . . . . 76 SECTION 1307. Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . 76 SECTION 1308. No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . 77 SECTION 1309. Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 77 SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent . . . 78 SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness . . . . . . 78 SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights . . . . . . . . . . . . . . 78 SECTION 1313. Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . 79 SECTION 1314. Application by Trustee of Assets Deposited with It . . . . . . . . . 79 ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . 79 SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . 79 SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . 80 SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . 81 SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . 82
-vi- 9 TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1 EXHIBIT B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
-vii- 10 INDENTURE, dated as of _________________, 19__ between SNYDER OIL CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), having its principal office at 777 Main Street, Suite 2500, Fort Worth, Texas 76102, and ____________________, a ____________________ duly organized and existing under the laws of _______________, as Trustee (herein called the "Trustee"), the office of the Trustee at which at the date hereof its corporate trust business is principally administered being ________________________. RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of subordinated indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States, and, except as otherwise herein expressly provided, the term "generally -1- 11 accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States at the date of such computation; and (3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in Section 102. "Act", when used with respect to any Holder, has the meaning specified in Section 105. "Additional Amounts" means any additional amounts that are required by a Security or by or pursuant to a Board Resolution, under circumstances specified therein or pursuant thereto, to be paid by the Company with respect to certain taxes, assessments or other governmental charges imposed on certain Holders and that are owing to such Holders. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent" means NationsBank of Texas, N.A., when acting in its capacity as agent under the Bank Credit Facility and any other Person acting as agent, trustee or other fiduciary under the Bank Credit Facility, when acting in such capacity. "Authenticating Agent" means any Person, which may include the Company, authorized by the Trustee to act on behalf of the Trustee pursuant to Section 614 to authenticate Securities of one or more series. "Authorized Newspaper" means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place in connection with which the term is used or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day. "Bank Credit Facility" means the Fourth Restated Credit Agreement dated July 1, 1993 among the Company, the lenders named therein and the Agent, as heretofore -2- 12 amended and as the same may be further amended, restated, supplemented or otherwise modified from time to time, and any Refinancings thereof that may be effected, whether or not with the same lenders or the same Agent and whether or not the principal amount outstanding thereunder shall be thereby increased. "Bearer Security" means any Security in the form established pursuant to Section 201 which is payable to bearer, including, without limitation, unless the context otherwise indicates, a Security in temporary or permanent global bearer form. "Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Book-Entry Security" means a Security bearing the legend specified in Section 204, evidencing all or part of a series of Securities, issued to the Depository for such series or its nominee, and registered in the name of such Depository or nominee. Book-Entry Securities shall not be deemed to be securities in global form for purposes of Sections 201 and 203 and Article Three of this Indenture. "Business Day", when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment are authorized or obligated by law to close. "CEDEL" or "CEDEL S.A." means Centrale de Livraison De Valeurs Mobiliers S.A., or, if any time after the execution of this instrument, Centrale de Livraison de Valeurs Mobiliers S.A. is not existing and performing the duties now being performed by it, then the successor Person performing such duties. "Certification Date" means with respect to Securities of any series (i) if Bearer Securities of such series are not to be initially represented by a temporary global Security, the date of delivery of the definitive Bearer Security and (ii), if Bearer Securities of such series are initially represented by a temporary global Security, the earlier of (A) the Exchange Date with respect to Securities of such series and (B), if the first Interest Payment Date with respect to Securities of such series is prior to such Exchange Date, such Interest Payment Date. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this instrument such Commission is not existing and -3- 13 performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Common Depositary" has the meaning specified in Section 304. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Corporate Trust Office" means the principal office of the Trustee in ________, _____________ at which at any particular time its corporate trust business shall be principally administered. "coupon" means any interest coupon appertaining to a Bearer Security. "Defaulted Interest" has the meaning specified in Section 307. "Depository" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Book-Entry Securities, the clearing agency registered under the Securities Exchange Act of 1934, as amended, specified for that purpose as contemplated by Section 301. "Designated Senior Indebtedness" means (i) all Senior Indebtedness under the Bank Credit Facility if the sum of the aggregate principal amount outstanding under the Bank Credit Facility and the aggregate amount available for borrowing thereunder is equal to or greater than $25,000,000 and (ii) all other Senior Indebtedness having an outstanding principal amount equal to or greater than $25,000,000; provided, however, that the agreements, indentures or other instruments evidencing any Senior Indebtedness referred to in clause (ii) above specifically state that such Senior Indebtedness shall be classified as "Designated Senior Indebtedness" for purposes of this Indenture. "Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debts. "Euro-clear" means the operator of the Euro-clear System. -4- 14 "Event of Default" has the meaning specified in Section 501. "Holder", when used with respect to any Security, means in the case of a Registered Security the Person in whose name the Security is registered in the Security Register and in the case of a Bearer Security the bearer thereof and, when used with respect to any coupon, means the bearer thereof. "Indebtedness", as applied to any Person, means all indebtedness, whether or not represented by bonds, debentures, notes or other securities, created or assumed by such Person for the repayment of money borrowed, and obligations, computed in accordance with generally accepted accounting principles, as lessee under leases that should be, in accordance with generally accepted accounting principles, recorded as capital leases. All Indebtedness secured by a lien upon property owned by the Company or any Subsidiary and upon which Indebtedness such Person customarily pays interest, although such Person has not assumed or become liable for the payment of such Indebtedness, shall for all purposes hereof be deemed to be Indebtedness of such Person. All Indebtedness of others guaranteed as to payment of principal by such Person or in effect guaranteed by such Person through a contingent agreement to purchase such Indebtedness shall for all purposes hereof be deemed to be Indebtedness of such Person. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 301. "interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security. "Judgment Currency" has the meaning specified in Section 506. "Junior Subordinated Payment" means any payment or distribution which may be payable or deliverable in respect of the Securities by reason of the payment of any Indebtedness of the Company that is subordinate in right of payment to the payment of the Securities. "Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. -5- 15 "Non-Payment Event of Default" means any event, circumstance, condition or state of facts (other than a Payment Event of Default) the occurrence or existence of which permits one or more holders of Designated Senior Indebtedness (or a trustee or other representative of the holders thereof) to declare such Designated Senior Indebtedness immediately due and payable prior to the date on which such indebtedness would otherwise become due and payable. "Obligation" of any Person means any obligation of such Person to pay principal of or premium, if any, or interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not a claim for such post-petition interest is allowed in such proceeding) on any Indebtedness or any penalties, reimbursement or indemnification amounts, fees, expenses or other amounts in respect thereof. "Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, the Controller, the Secretary or an Assistant Treasurer, Assistant Controller or Assistant Secretary of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for or an employee of the Company. "Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (c) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there -6- 16 shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, or whether a quorum is present at a meeting of Holders of Securities, (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purposes shall be the principal amount thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal amount of a Security denominated in a foreign currency shall be the U.S. dollar equivalent, determined by the Company on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent, determined on the date of original issuance of such Security, of the amount determined as provided in clause (i) above), of such Security and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver or upon any such determination as to the presence of a quorum, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person, which may include the Company, authorized by the Company to pay the principal of (and premium, if any) or interest on any one or more series of Securities on behalf of the Company. "Payment Blockage Period" has the meaning specified in Section 1303. "Payment Event of Default" means any default in the payment of principal of or premium, if any, or interest on or fees with respect to any Designated Senior Indebtedness beyond any applicable grace period with respect thereto. "Permitted Junior Securities" means subordinated debt securities of the Company (or any successor obligor with respect to the Senior Indebtedness) provided for by a plan of reorganization or readjustment that are subordinated in right of payment to all Senior Indebtedness that may be outstanding to substantially the same extent as, or to a greater extent than, the Securities are subordinated as provided in this Indenture. -7- 17 "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified in accordance with Section 301 subject to the provisions of Section 1002. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains, shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which a mutilated, destroyed, lost or stolen coupon appertains, as the case may be. "Proceeding" means (subject to the last paragraph of Section 1302) (i) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, (ii) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (iii) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company. "Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Refinance" means, with respect to any specified Indebtedness, to incur additional Indebtedness and use the proceeds thereof to redeem, repurchase, retire for value, refinance or refund such specified Indebtedness (and the term "Refinancing" and "Refinanced" shall have meanings correlative to the foregoing.) "Registered Security" means any Security in the form established pursuant to Section 201 which is registered in the Security Register. "Regular Record Date" for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 301, or, if not so specified, the last day of the calendar month preceding such Interest Payment Date if such Interest Payment Date is the fifteenth day of the calendar month or the fifteenth day of the calendar month preceding such Interest -8- 18 Payment Date if such Interest Payment Date is the first day of a calendar month, whether or not such day shall be a Business Day. "Required Currency" has the meaning specified in Section 506. "Responsible Officer", when used with respect to the Trustee, means the chairman or any vice chairman of the board of directors, the chairman or any vice chairman of the executive committee of the board of directors, the chairman of the trust committee, the president, any Vice President, the secretary, any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture. "Securities Payment" means any payment or distribution of any kind or character, whether by way of set-off or otherwise and whether in cash, property or securities (including any Junior Subordinated Payment) on account of principal of or premium, if any, or interest on, or Additional Amounts with respect to, the Securities or on account of any purchase, repurchase, redemption or other acquisition of Securities by the Company. "Security Register" and "Security Registrar" have the respective meanings specified in Section 305. "Senior Indebtedness" means (a) all Obligations of the Company under the Bank Credit Facility and (b) all other Indebtedness of the Company, whether currently outstanding or hereafter issued; provided that "Senior Indebtedness" shall not include (i) the Company's 7% Convertible Subordinated Notes due 2001, (ii) the Company's 8% Convertible Subordinated Debentures and 6% Convertible Subordinated Debentures, if and when issued, for which the Company's existing preferred stock is exchangeable, (iii) any Obligation owed to a Subsidiary or an Affiliate of the Company, (iv) any Obligation that by the terms of the instrument creating or evidencing the same is not superior in right of payment to the Securities, and (v) any Obligation constituting a trade account payable. "Special Record Date" for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or coupon -9- 19 representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable. "Subsidiary" means a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Sections 905 and 1007. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series. "United States" means the United States of America (including the States and the District of Columbia) and its "possessions", which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. "United States Alien" means any Person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien or foreign fiduciary of an estate or trust, or a foreign partnership. "U.S. Government Obligations" has the meaning specified in Section 401. "Vice President", when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president". "Wholly Owned Subsidiary" means a corporation all the outstanding voting stock (other than any directors' qualifying shares) of which is owned, directly or indirectly, by the Company or by one or more other Wholly Owned Subsidiaries, or by the Company and one or more other Wholly Owned Subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. -10- 20 "Yield to Maturity", when used with respect to any Original Issue Discount Security, means the yield to maturity, if any, set forth on the face thereof. SECTION 102. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings: "Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States Code. "indenture securities" means the Securities. "indenture security holder" means a Holder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the indenture securities means the Company or any other obligor on the Securities. All the other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture Act and not otherwise defined herein have the meanings assigned to them therein. SECTION 103. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include -11- 21 (1) a statement that each Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such Person, such Person has made such examination or investigation as is necessary to enable such Person to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such Person, such condition or covenant has been complied with. SECTION 104. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 105. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders -12- 22 in person or by an agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at a meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Fourteen, or a combination of such instruments and any such records. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding of any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1406. The Company may set a record date for purposes of determining the identity of Holders of Registered Securities entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture, which record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation. If a record date is fixed, those persons who were Holders of Registered Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled with respect to such Securities to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register. (d) The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or -13- 23 other depositary, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary or exhibited to it the Bearer Securities therein described; or such facts may be proved by the certificate of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another certificate bearing a later date issued in respect of the same Bearer Security is produced, (ii) such Bearer Security is produced to the Trustee by some other Person, (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities held by any Person, and the date of holding the same, may also be proved in any other manner which the Trustee deems sufficient. (e) In determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver under this Indenture, the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 at the time the taking of such action by the Holders of such requisite principal amount is evidenced to the Trustee for such Securities. (f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. Any consent or waiver of the Holder of any Security shall be irrevocable for a period of six months after the date of execution thereof, but otherwise any such Holder or subsequent Holder may revoke the request, demand, authorization, direction, notice, consent, waiver or other Act as to such Holder's Security or portion thereof. Such revocation shall be effective only if the Trustee receives the notice of revocation before the date the Act becomes effective. SECTION 106. Notices, Etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Group, or -14- 24 (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company, Attention: Corporate Secretary. SECTION 107. Notice to Holders; Waiver. Where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) (a) to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (b) to Holders of Bearer Securities if published in an Authorized Newspaper in the City of New York and London or other capital city in Western Europe and in such other city or cities as may be specified in such Bearer Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice. In case by reason of the suspension of regular mail service, or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder. In any case in which notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security, shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. In case by reason of the suspension of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be made with the approval of the Trustee for such Securities shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. -15- 25 SECTION 108. Conflict With Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with any provision of the Trust Indenture Act or another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such provision of the Trust Indenture Act shall control. SECTION 109. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 110. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 111. Separability Clause. In case any provision in this Indenture or in the Securities (or any coupon appertaining thereto) shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 112. Benefits of Indenture. Nothing in this Indenture or in the Securities (or any coupon appertaining thereto), express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders and holders of any Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 113. Governing Law. This Indenture and the Securities (or any coupon appertaining thereto) shall be governed by and construed in accordance with the laws of the State of New York. SECTION 114. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or coupons appertaining thereto) payment of principal and interest (and premium and Additional Amounts, if any,) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force -16- 26 and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 115. Corporate Obligation. No recourse may be taken, directly or indirectly, against any incorporator, subscriber to the capital stock, shareholder, officer, director or employee of the Company or the Trustee or of any predecessor or successor of the Company or the Trustee with respect to the Company's obligations on the Securities or any coupons appertaining thereto or the obligations of the Company or the Trustee under this Indenture or any certificate or other writing delivered in connection herewith. ARTICLE TWO SECURITY FORMS SECTION 201. Forms Generally. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons appertaining thereto shall be in substantially such form or forms (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons appertaining thereto, as evidenced by their execution of the Securities or coupons appertaining thereto. If temporary Securities of any series are issued in global form as permitted by Section 304, the form thereof shall be established as provided in the preceding sentence. A copy of the Board Resolution establishing the form or forms of Securities or coupons appertaining thereto of any series (or any such temporary global Security) shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Securities (or any such temporary global Security) or coupons appertaining thereto. Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons appertaining thereto attached. The definitive Securities and coupons appertaining thereto, if any, shall be printed lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons appertaining thereto, as evidenced by their execution thereof. -17- 27 SECTION 202. Form of Trustee's Certificate of Authentication. The Trustee's 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. _______________________________________ as Trustee By_____________________________________ Authorized Signatory." SECTION 203. Securities in Global Form. If Securities of a series are issuable in global form, as contemplated by Section 301, then, notwithstanding clause (10) of Section 301 and the provisions of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon instructions given by such Person or Persons as shall be specified in such Security or in a Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon instructions given by the Person or Persons specified in such Security or in the applicable Company Order. If a Company Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 103 and need not be accompanied by an Opinion of Counsel. The provisions of the last sentence of Section 303 shall apply to any Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 103 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303. Notwithstanding the provisions of Sections 201 and 307, unless otherwise specified as contemplated by Section 301, payment of principal of (and premium, if any) and -18- 28 interest, on any Security in permanent global form shall be made to the Person or Persons specified therein. Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company or of the Trustee shall treat a Person as the Holder of such principal amount of Outstanding Securities represented by a global Security as shall be specified in a written statement, if any, of the Holder of such global Security or, in the case of a global Bearer Security, of Euro-clear or CEDEL S.A., which is produced to the Security Registrar by such Holder. Global Securities may be issued in either registered or bearer form and in either temporary or permanent form. Permanent Global Securities will be issued in definitive form. SECTION 204. Form of Legend for Book-Entry Securities. Any Book-Entry Security authenticated and delivered hereunder shall bear a legend in substantially the following form: "This Security is a Book-Entry Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in or pursuant to the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in such limited circumstances." ARTICLE THREE THE SECURITIES SECTION 301. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities); -19- 29 (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906 or 1107); (3) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons appertaining thereto and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, and the Common Depositary for any global Security or Securities; (4) the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature and the extent to which, or the manner in which, any interest payable on a temporary global Security on any Interest Payment Date will be paid if other than in the manner provided in Section 304; (5) the date or dates on which the principal (and premium, if any) of the Securities of the series is payable or the method of determination thereof; (6) the rate or rates, or the method of determination thereof, at which the Securities of the series shall bear interest, if any, whether and under what circumstances Additional Amounts with respect to such Securities shall be payable, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and, if other than as set forth in Section 101, the Regular Record Date for the interest payable on any Registered Securities on any Interest Payment Date; (7) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to, the Securities of the series shall be payable; (8) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option; (9) the obligation, if any, of the Company to redeem or purchase Securities of the series pursuant to any sinking fund or analogous provisions or at the option -20- 30 of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which, Securities of the series shall be redeemed or purchased in whole or in part pursuant to such obligation; (10) the denomination in which any Registered Securities of that series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denomination in which any Bearer Securities of that series shall be issuable, if other than the denomination of $5,000; (11) the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and interest on, and any Additional Amounts with respect to, the Securities of the series shall be payable if other than the currency of the United States of America; (12) if the principal of (and premium,if any) or interest on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies (including composite currencies) other than that in which the Securities are stated to be payable, the currency or currencies (including composite currencies) in which payment of the principal of (and premium, if any) and interest on, and any Additional Amounts with respect to, Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made; (13) if the amount of payments of principal of (and premium, if any) or interest on, and any Additional Amounts with respect to, the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (14) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (15) whether the Securities of the series shall be issued upon original issuance in whole or in part in the form of one or more Book-Entry Securities and, in such case, (a) the Depository with respect to such Book-Entry Security or Securities; and (b) the circumstances under which any such Book-Entry Security may be exchanged for Securities registered in the name of, and any transfer of such Book-Entry Security may be registered to, a Person other than such Depository or its nominee, if other than as set forth in Section 305; (16) any additional means of satisfaction and discharge of this Indenture with respect to Securities of the series pursuant to Section 401, any additional conditions to discharge pursuant to Section 401 or 403 and the application, if any, of Section 403; -21- 31 (17) any deletions or modifications of or additions to the Events of Default set forth in Section 501 or covenants of the Company set forth in Article Ten pertaining to the Securities of the series; and (18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers' Certificate referred to above or in any such indenture supplemental hereto. At the option of the Company, interest on the Securities of any series that bears interest may be paid by mailing a check to the address of any Holder as such address shall appear in the Security Register. If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action together with such Board Resolution shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. The Securities shall be subordinated in right of payment to Senior Indebtedness as provided in Article Thirteen. SECTION 302. Denominations. The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. In the absence of any such provisions with respect to the Securities of any series, the Registered Securities of such series denominated in Dollars shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of such series denominated in Dollars shall be issuable in the denominations of $5,000 and any integral multiple thereof. Unless otherwise provided as contemplated by Section 301 with respect to any series of Securities, any Securities of a series denominated in a currency other than Dollars shall be issuable in denominations that are the equivalent, as determined by the Company by reference to the noon buying rate in The City of New York for cable transfers for such currency, as such rate is reported or otherwise made available by the Federal Reserve Bank of New York, on the applicable issue date for such Securities, of $1,000 and any integral multiple thereof. -22- 32 SECTION 303. Execution, Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President, its Treasurer or one of its Vice Presidents, under its corporate seal reproduced thereon or affixed thereto attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Coupons shall bear the facsimile signature of the President or any Vice President of the Company. Securities and coupons appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or coupons. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, together with any coupons appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise; provided, however, that, in connection with its sale, during the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations), no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may (other than a temporary global security in bearer form delivered as provided in Section 304) be delivered outside the United States in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit A to this Indenture, or in such other form of certificate as shall contain information then required by federal income tax laws and, if applicable, federal securities laws, dated no earlier than the Certification Date. If any Security shall be represented by a permanent global Bearer Security, then, for purposes of this Section and Section 304, the notation of a beneficial owner's interest therein upon original issuance of such Security or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection with sale, during the "restricted period" (as defined in Section 1.163-5(c)(2)(i)(D)(7) of the United States Treasury Regulations) of such beneficial owner's interest in such permanent global Security. Except as permitted by Section 306, the Trustee shall not authenticate and deliver any Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled. If the form or terms of the Securities of the series have been established in or pursuant to one or more Board Resolutions as permitted by Sections 201 and 301, in authenticating such Securities, and accepting the additional responsibilities under this -23- 33 Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating, (a) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 201, that such form has been established in conformity with the provisions of this Indenture; (b) if the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms have been established in conformity with the provisions of this Indenture; and (c) that such Securities, together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, except as such enforcement is subject to the effect of (i) bankruptcy, insolvency, reorganization or other law relating to or affecting creditors' rights and (ii) general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Each Registered Security shall be dated the date of its authentication; and each Bearer Security shall be dated as of the date of issuance of the first Bearer Security of such series to be issued. No Security or coupon or coupons appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 103 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. -24- 34 SECTION 304. Temporary Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons appertaining thereto or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. In the case of any series issuable as Bearer Securities, such temporary Securities may be in global form. A temporary Bearer Security shall be delivered only in compliance with the conditions set forth in Section 303. Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto), the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series; provided, however, that no Bearer Security shall be issued in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security (including interests in a permanent Global Security) shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Any temporary global Bearer Security and any permanent global security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the "Common Depositary") for the benefit of Euro-clear and CEDEL S.A. for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct). Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security of a series (the "Exchange Date"), the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company's -25- 35 agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of that series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged; provided however, that unless otherwise specified in such temporary global Security, upon such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euro-clear as to the portion of such temporary global Security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by CEDEL S.A. as to the portion of such temporary global Security held for its account then to be exchanged, each in the form set forth in Exhibit B to this Indenture. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and if any combination thereof is so specified, as requested by the beneficial owner thereof. Unless otherwise specified in the temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged on the Exchange Date for definitive Securities (and where the form of the definitive Securities is not specified by the Holder, for an interest in a permanent global Security) of the same series and of like tenor unless, on or prior to the Exchange Date, such beneficial owner has not delivered to Euro-clear or CEDEL S.A. as the case may be, a certificate in the form set forth in Exhibit A to this Indenture dated no earlier than the Certification Date, copies of which certificate shall be available from the offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent and after the Exchange Date, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities (and where the form of the definitive Securities is not specified by the Holder, for an interest in a permanent global Security) of the same series and of like tenor following such beneficial owner's delivery to Euro-clear or CEDEL S.A. as the case may be, of a certificate in the form set forth in Exhibit A to this Indenture dated no earlier than the Certificate Date. Unless otherwise specified in such temporary global Security, any exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euro-clear or CEDEL S. A. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States. Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest -26- 36 payable on a temporary global Security on an Interest Payment Date for Securities of such series shall be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in the form set forth in Exhibit B to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment and who have each delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the form set forth in Exhibit A to this Indenture. Any interest so received by Euro-clear or CEDEL S.A. and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company in accordance with Section 1003. SECTION 305. Registration, Registration of Transfer and Exchange. The Company shall cause to be kept for each series of Securities at one of the offices or agencies maintained pursuant to Section 1002 a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities of such series. The Trustee is hereby initially appointed "Security Registrar" for the purpose of registering Securities and transfers of Securities as herein provided. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series and of like tenor, of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Bearer Securities may not be issued in exchange for Registered Securities. At the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in -27- 37 funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 1002, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (a) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security are entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities of that series in an aggregate principal amount equal to the principal amount of such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered from time to time in accordance with instructions given to the Trustee and the Common Depositary (which instructions shall be in writing but need not comply with Section 103 or be accompanied an Opinion of Counsel) by the Common Depositary or such other depositary or Common Depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or in part, for definitive Securities of the same series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, a like aggregate principal amount of other definitive Securities of the same series of -28- 38 authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 301, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of that series is to be redeemed and ending on the relevant Redemption Date; and provided, further, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. Promptly following any such exchange in part, such permanent global Security shall be returned by the Trustee to the Common Depositary or such other depositary or Common Depositary referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (a) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (b) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchange pursuant to Section 304, 906 or 1107 not involving any transfer. The Company shall not be required (a) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Securities of such series -29- 39 selected for redemption and ending at the close of business on (i) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (ii) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption, or if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption or (b) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (c) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption. Notwithstanding the foregoing and except as otherwise specified pursuant to Section 301, any Book-Entry Security shall be exchangeable pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities registered in the name of, and a transfer of a Book-Entry Security of any series may be registered to, any Person other than the Depository for such Security or its nominee only if (a) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Book- Entry Security or if at any time such Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, (b) the Company executes and delivers to the Trustee a Company Order that such Book-Entry Security shall be so exchangeable and the transfer thereof so registrable or (c) there shall have occurred and be continuing an Event of Default, or an event which after notice or lapse of time would be an Event of Default, with respect to the Securities of such series. Upon the occurrence in respect of any Book-Entry Security of any series of any one or more of the conditions specified in clauses (a), (b) or (c) of the preceding sentence or such other conditions as may be specified, such Book-Entry Security may be exchanged for Securities registered in the names of, and the transfer of such Book-Entry Security may be registered to, such Persons (including Persons other than the Depository with respect to such series and its nominees) as such Depository shall direct. Notwithstanding any other provision of this Indenture, any Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry Security and shall bear the legend specified in Section 204 except for any Security authenticated and delivered in exchange for, or upon registration of transfer of, a Book-Entry Security pursuant to the preceding sentence. SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security. -30- 40 If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon appertaining thereto and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains. In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security; provided, however, that the principal of and any premium and interest on Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States. Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fee and expenses of the Trustee) connected therewith. Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security to which a destroyed, lost or stolen coupon appertains shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed, lost or stolen coupons shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder. The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons. SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. Unless otherwise provided with respect to the Securities of any series, payment of interest may be made at the option of the Company (a) in the case of Registered Securities, by check mailed or delivered to the -31- 41 address of any Person entitled thereto as such address shall appear in the Security Register, or (b) in the case of Bearer Securities, except as otherwise provided in Section 1002, upon presentation and surrender of the appropriate coupon appertaining thereto at an office or agency of the Company in a Place of Payment located outside the United States or by transfer to an account maintained by the payee with a bank located outside the United States. Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, -32- 42 and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of, in exchange for or in lieu of, any other Security, shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 308. Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 305 and 307) interest on such Registered Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the bearer of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Notwithstanding the foregoing, with respect to any Book-Entry Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depository or impair, as between a Depository and holders of beneficial interests in any Book-Entry Security, the operation of customary practices governing the exercise of the rights of the Depository (or its nominee) as Holder of such Book-Entry Security. SECTION 309. Cancellation. All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons so delivered shall be held by the Trustee and, upon instruction by a Company Order, shall be cancelled or held for reissuance. Bearer Securities -33- 43 and unmatured coupons held for reissuance may be reissued only in replacement of mutilated, lost, stolen or destroyed Bearer Securities of the same series and like tenor or the related coupons pursuant to Section 306. All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for all purposes of this Indenture and the Securities. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order. In the case of any temporary global Security, which shall be disposed of if the entire aggregate principal amount of the Securities represented thereby has been exchanged, the certificate of disposition shall state that all certificates required pursuant to Section 304 hereof, substantially in the form of Exhibit B hereto, to be given by the Euro-clear operator or CEDEL S.A., have been duly presented to the Trustee for such Securities by the Euro-clear operator or CEDEL S.A. as the case may be. Permanent global Securities shall not be disposed of until exchanged in full for definitive Securities or until payment thereon is made in full. SECTION 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a year of twelve 30-day months. ARTICLE FOUR SATISFACTION AND DISCHARGE SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to Securities of a series, and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to Securities of such series, when (1) either (A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered -34- 44 Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, (iii) coupons appertaining to Bearer Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or (B) with respect to all Outstanding Securities of such series and any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation, the Company has deposited or caused to be deposited with the Trustee as trust funds, under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, for the purpose money or U.S. Government Obligations maturing as to principal and interest in such amounts and at such times as will, together with the income to accrue thereon, without consideration of any reinvestment thereof, be sufficient to pay and discharge the entire indebtedness on all Outstanding Securities of such series and coupons appertaining thereto not theretofore delivered to the Trustee for cancellation for principal (and premium and Additional Amounts, if any) and interest to the Stated Maturity or any Redemption Date contemplated by the penultimate paragraph of this Section, as the case may be; or (C) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to the Securities of such series; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series; (3) the Company has complied with any other conditions specified pursuant to Section 301 to be applicable to the discharge of Securities of such series pursuant to this Section 401; and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to the Outstanding Securities of such series have been complied with. For the purposes of this Indenture, "U.S. Government Obligations" means direct non-callable obligations of, or non-callable obligations the payment of principal of and interest on which is guaranteed by, the United States of America, or to the payment of -35- 45 which obligations or guarantees the full faith and credit of the United States of America is pledged, or beneficial interests in a trust the corpus of which consists exclusively of money or such obligations or a combination thereof. If any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Notwithstanding the satisfaction and discharge of this Indenture with respect to the Outstanding Securities of such series pursuant to this Section 401, the obligations of the Company to the Trustee under Section 607, the obligations of the Trustee to any Authenticating Agent under Section 614 and, except for a discharge pursuant to subclause (A) of clause (1) of this Section, the obligations of the Company under Sections 305, 306, 404, 1001 and 1002 and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive. SECTION 402. Application of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and interest and Additional Amounts for the payment of which such money has been deposited with the Trustee. SECTION 403. Discharge of Liability on Securities of Any Series. If this Section is specified, as contemplated by Section 301, to be applicable to Securities of any series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of such series, the obligation of the Company under this Indenture and the Securities of such series to pay the principal of (and premium, if any) and interest on Securities of such series, and any coupon appertaining thereto, shall cease, terminate and be completely discharged and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging such satisfaction and discharge, when (1) the Company has complied with the provisions of Section 401 of this Indenture (other than any additional conditions specified pursuant to Sections 301 and 401(3)) with respect to all Outstanding Securities of such series, -36- 46 (2) the Company has delivered to the Trustee a Company Request requesting such satisfaction and discharge, (3) the Company has complied with any other conditions specified pursuant to Section 301 to be applicable to the discharge of Securities of such series pursuant to this Section 403, and (4) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the discharge of the indebtedness on the Outstanding Securities of such series have been complied with. Upon the satisfaction of the conditions set forth in this Section with respect to all the Outstanding Securities of any series, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company; provided, however, that, the Company shall not be discharged from any payment obligations in respect of Securities of such series which are deemed not to be Outstanding under clause (c) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law or pursuant to Section 305 or 306. SECTION 404. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations deposited with respect to Securities of any series in accordance with Section 401 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture with respect to the Securities of such series and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant to Section 401 until such time as the Trustee or Paying Agent is permitted to apply all such money or U.S. Government Obligations in accordance with Section 401; provided, however, that if the Company has made any payment of principal or interest of (or premium, if any), and any Additional Amounts with respect to, on any Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent. -37- 47 ARTICLE FIVE REMEDIES SECTION 501. Events of Default. "Event of Default", wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be occassioned by the provisions of Article Thirteen or be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless it is either inapplicable to a particular series or it is specifically deleted or modified in or pursuant to the supplemental indenture or Board Resolution establishing such series of Securities or in the form of Security for such series: (1) default in the payment of any interest or any Additional Amounts upon any Security of that series when such interest or Additional Amounts become due and payable, and continuance of such default for a period of 30 days, whether or not such payment is prohibited by Article Thirteen; or (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity, whether or not such payment is prohibited by Article Thirteen; or (3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series, and continuance of such default for a period of 60 days, whether or not such payment is prohibited by Article Thirteen; or (4) default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than that series), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of all Outstanding Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, -38- 48 adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (6) the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (7) any other Event of Default provided with respect to Securities of that series. Notwithstanding the foregoing provisions of this Section 501, if the principal of (and premium, if any) or any interest on, or Additional Amounts with respect to, any Security is payable in a currency or currencies (including a composite currency) other than Dollars and such currency (or currencies) is (or are) not available to the Company for making payment thereof due to the imposition of exchange controls or other circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities by making such payment in Dollars in an amount equal to the Dollar equivalent of the amount payable in such other currency, as determined by the Trustee by reference to the noon buying rate in The City of New York for cable transfers for such currency ("Exchange Rate"), as such Exchange Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 501, any payment made under such circumstances in Dollars where the required payment is in a currency other than Dollars will not constitute an Event of Default under this Indenture. -39- 49 SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to any Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of (a) the series affected by such default (in the case of an Event of Default described in clause (1), (2), (3) or (7) of Section 501) or (b) all series of Securities (in the case of other Events of Default) may declare the principal amount (or, if any such Securities are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all of the Securities of the series affected by such default or all series, as the case may be, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. At any time after such a declaration of acceleration with respect to Securities of any series (or of all series, as the case may be) has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series (or of all series, as the case may be), by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue interest on, and any Additional Amounts with respect to, all Securities of that series (or of all series, as the case may be) and any coupons appertaining thereto, (B) the principal of (and premium, if any, on) any Securities of that series (or of all series, as the case may be) which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), (C) to the extent that payment of such interest is lawful, interest upon overdue interest and any Additional Amounts at the rate or rates prescribed therefor in such Securities (in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and -40- 50 (2) all Events of Default with respect to Securities of that series (or of all series, as the case may be), other than the non-payment of the principal of Securities of that series (or of all series, as the case may be) which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if (1) default is made in the payment of any installment of interest on, or any Additional Amounts with respect to, any Security of any series and any coupons appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 60 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium, if any) and interest and Additional Amounts and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any) and on any overdue interest and Additional Amounts, at the rate or rates prescribed therefor in such Securities (or in the case of Original Issue Discount Securities, the Securities' Yield to Maturity), and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated. If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement -41- 51 in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal (or lesser amount in the case of Original Issue Discount Securities) of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal (or lesser amount in the case of Original Issue Discount Securities) (and premium, if any) and interest and any Additional Amounts owing and unpaid in respect of the Securities or any coupons appertaining thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceedings. SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claim under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without possession of any of the -42- 52 Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered. SECTION 506. Application of Money Collected. Subject to Article Thirteen, any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (or premium, if any), interest or any Additional Amounts, upon presentation of the Securities or coupons, or both as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 607; SECOND: To holders of Senior Indebtedness to the extent required by Article Thirteen; THIRD: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest and any Additional Amounts on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal (and premium, if any), interest and Additional Amounts, respectively; and FOURTH: The balance, if any, to the Person or Persons entitled thereto. To the fullest extent allowed under applicable law, if for the purpose of obtaining judgment against the Company in any court it is necessary to convert the sum due in respect of the principal of (or premium, if any) or interest on the Securities of any series (the "Required Currency") into a currency in which a judgment will be rendered (the "Judgment Currency"), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Business Day next preceding that on which final judgment is given. Neither the Company nor the Trustee shall be liable for any shortfall nor shall it benefit from any windfall in payments to Holders of Securities under this Section caused by a change in exchange rates between the time the amount of a judgment against it is calculated as above and the time the Trustee converts the Judgment Currency into the Required Currency to make payments under this Section to Holders of Securities, but payment of such judgment shall discharge all amounts owed by the Company on the claim or claims underlying such judgment. -43- 53 SECTION 507. Limitation on Suits. No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) an Event of Default with respect to Securities of such series shall have occurred and be continuing and such Holder has previously given written notice to the Trustee of such continuing Event of Default; (2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Subject to Article Thirteen and notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 307) interest on such Security or payment of such coupon on the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. -44- 54 SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted. SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities or coupons to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 512. Control by Holders. With respect to Securities of any series, the Holders of a majority in principal amount of the Outstanding Securities of such series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, relating to or arising under an Event of Default described in clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities the Holders of a majority in principal amount of all Outstanding Securities shall have the right to direct the time, method and place of conducting any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, not relating to or arising under such an Event of Default, provided that in each such case (1) such direction shall not be in conflict with any rule of law or with this Indenture, and -45- 55 (2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 513. Waiver of Past Defaults. The Holders of a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series relating to or arising under an Event of Default described in clause (3) or (7) of Section 501 and its consequences, and the Holders of a majority in principal amount of all Outstanding Securities may on behalf of the Holders of all Securities waive any other past default hereunder and its consequences, except in each case a default (1) in the payment of the principal of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Security, or (2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 514. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Security or the payment of any coupon on or after the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date). -46- 56 SECTION 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE SIX THE TRUSTEE SECTION 601. Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. (b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. (c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (1) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section; -47- 57 (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series or of all series, determined as provided in Section 512, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and (4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. (d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any) or interest on, or any Additional Amount with, any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 501(4) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. -48- 58 SECTION 603. Certain Rights of Trustee. Subject to the provisions of Section 601: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. -49- 59 SECTION 604. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 605. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent. SECTION 606. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. SECTION 607. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against any claim or -50- 60 liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, premium, if any, or interest, if any, on, or Additional Amounts with respect to, particular Securities. SECTION 608. Disqualification; Conflicting Interests. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section, with respect to the Securities of any series, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign with respect to the Securities of that series in the manner and with the effect hereinafter specified in this Article. (b) In the event that the Trustee shall fail to comply with the provisions of Subsection (a) of this Section with respect to the Securities of any series, the Trustee shall, within 10 days after the expiration of such 90-day period, transmit by mail to all Holders of Securities of that series, as their names and addresses appear in the Security Register, notice of such failure. (c) For the purposes of this Section, the term "conflicting interest" shall have the meaning specified in Section 310(b) of the Trust Indenture Act and the Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided, however, that there shall be excluded from the operation of Section 310 (b) (1) of the Trust Indenture Act with respect to the Securities of any series the Indenture dated as of June 1, 1968, as supplemented, between the Company and the Trustee, the Indenture dated as of February 5, 1986, as supplemented, between the Company and the Trustee, this Indenture with respect to the Securities of any series other than that series, and any other indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding, if the requirements for such exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of the preceding sentence, the optional provision permitted by the second sentence of Section 310(b)(9) of the Trust Indenture Act shall be applicable. SECTION 609. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal or state authority. If such corporation publishes -51- 61 reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. SECTION 610. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 611. (b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 611 shall not have been delivered to the resigning Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. (d) If at any time: (1) the Trustee shall fail to comply with Section 608(a) after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or (2) the Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by any such Holder of Securities, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees. -52- 62 (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and such successor Trustee or Trustees shall comply with the applicable requirements of Section 611. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 611, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 611, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. SECTION 611. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. -53- 63 (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. SECTION 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not -54- 64 delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 613. Preferential Collection of Claims Against Company. The Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship described in Section 311 (b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311 (a) of the Trust Indenture Act to the extent indicated therein. SECTION 614. Appointment of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents which shall be authorized to act on behalf of the Trustee to authenticate Securities issued upon original issue and upon exchange, registration of transfer or partial redemption or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, or in the case of an Authenticating Agent with respect to Securities issuable as Bearer Securities, under the laws of any country in which such Bearer Securities may be offered; authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 or equivalent amount expressed in a foreign currency and subject to supervision or examination by federal or state authority or authority of such country. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section. Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such -55- 65 corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section. The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 607. If an appointment is made pursuant to this Section, the Securities may have endorsed thereon, in addition to the Trustee's certificate of authentication, an alternate certificate of authentication in the following form: This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. _____________________________________________ As Trustee By __________________________________________ As Authenticating Agent By __________________________________________ Authorized Signatory Notwithstanding any provision of this Section 614 to the contrary, if at any time any Authenticating Agent appointed hereunder with respect to any series of Securities -56- 66 shall not also be acting as the Security Registrar hereunder with respect to any series of Securities, then, in addition to all other duties of an Authenticating Agent hereunder, such Authenticating Agent shall also be obligated: (i) to furnish to the Security Registrar promptly all information necessary to enable the Security Registrar to maintain at all times an accurate and current Security Register; and (ii) prior to authenticating any Security denominated in a foreign currency, to ascertain from the Company the units of such foreign currency that are required to be determined by the Company pursuant to Section 302. ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. With respect to each series of Securities, the Company will furnish or cause to be furnished to the Trustee: (a) semi-annually, not more than 15 days after each Regular Record Date relating to that series (or, if there is no Regular Record Date relating to that series, on January 1 and July 1), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of that series as of such dates, and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content, such list to be dated as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar, if so acting. SECTION 702. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of each series contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of each series received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. (b) Holders of Securities may communicate pursuant to Section 312 (b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities. -57- 67 (c) Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with Section 702(b), regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 702(b). SECTION 703. Reports by Trustee. (a) Within 60 days after May 15 of each year, commencing with the first May 15 following the issuance of the first series of Securities hereunder, the Trustee shall transmit by mail to Holders a brief report dated as of such May 15 that complies with Section 313(a) of the Trust Indenture Act. (b) The Trustee shall comply with Section 313(b) of the Trust Indenture Act. (c) Reports pursuant to this Section shall be transmitted by mail: (1) to all Holders of Registered Securities, as the names and addresses of such Holders appear in the Security Register; (2) to such Holders of Bearer Securities as have, within the two years preceding such transmissions, filed their names and addresses with the Trustee for that purpose; and (3) except in the case of reports pursuant to Subsection (b) of this Section, to each Holder of a Security whose name and address is preserved at the time by the Trustee, as provided in Section 702(a). (d) A copy of each report pursuant to Subsection (a) or (b) of this Section 703 shall, at the time of its transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange. SECTION 704. Reports by Company. The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a) of the Trust Indenture Act. -58- 68 ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 801. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest (including all Additional Amounts, if any) on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 802. Successor Person Substituted. Upon any consolidation by the Company with or merger by the Company into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of such lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons. -59- 69 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities and any coupons appertaining thereto (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default with respect to all or any series of the Securities (and, if such Event of Default is applicable to less than all series of Securities, specifying the series to which such Event of Default is applicable); or (4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or (5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is adversely affected by such change in or elimination of such provision; or (6) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301; or -60- 70 (7) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (8) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture, provided that such other provisions as may be made shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect. SECTION 902. Supplemental Indentures With Consent of Holders. With the consent of the Holders of a majority in principal amount of the Outstanding Securities of all series affected by such supplemental indenture (acting as one class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series and any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby, (1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, any Additional Amounts with respect thereto or any premium payable upon the redemption thereof, or change any obligation of the Company to pay Additional Amounts (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment where, or the coin or currency or currencies (including composite currencies) in which, any Security or any premium or any interest thereon or Additional Amounts with respect thereto is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or (2) reduce the percentage in principal amount of Outstanding Securities, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or -61- 71 (3) modify any of the provisions of this Section, Section 513 or Section 1008, except to increase any such percentage or to provide with respect to any particular series the right to condition the effectiveness of any supplemental indenture as to that series on the consent of the Holders of a specified percentage of the aggregate principal amount of Outstanding Securities of such series (which provision may be made pursuant to Section 301 without the consent of any Holder) or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1008, or the deletion of this proviso, in accordance with the requirements of Sections 611(b) and 901(7). A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties, immunities or liabilities under this Indenture or otherwise. SECTION 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 905. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. -62- 72 SECTION 906. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series and any coupons appertaining thereto so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series and any coupons appertaining thereto. ARTICLE TEN COVENANTS SECTION 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of (and premium, if any), interest on and any Additional Amounts with respect to the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due and Additional Amounts payable with respect to on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender of the several coupons for such interest installments, as are evidenced thereby as they severally mature. SECTION 1002. Maintenance of Office or Agency. If Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the Borough of Manhattan, The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange for Registered Securities, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (b) subject to any laws or regulations applicable thereto, in a Place of Payment for that series -63- 73 which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment (including payment of any Additional Amounts with respect to Bearer Securities of that series); provided, however, that if the Securities of that series are listed on the International Stock Exchange of the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities of that series in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange, and (c) subject to any laws or regulations applicable thereto, in a Place of Payment for that series located outside the United States an office or agency where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment (including payment of any Additional Amounts with respect to Bearer Securities of that series) at the office of any Paying Agent for such series located outside the United States, and the Company hereby appoints the Trustee as its office or agency to receive such presentations, surrenders, notices and demands. No payment of principal, premium or interest on, or Additional Amounts with respect to, Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States, nor shall any payments be made in respect of Bearer Securities or coupons appertaining thereto pursuant to the presentation to the Company or its designated Paying Agents within the United States; provided, however, that if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium and interest on any Bearer Security (including any Additional Amounts payable on securities of such series) shall be made at the office of the Company's Paying Agent in the Borough of Manhattan, The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium, interest, or Additional Amounts as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions. The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of -64- 74 its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 1003. Money for Securities Payments to be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities and any coupons appertaining thereto, it will, on or before each due date of the principal of (and premium, if any) or interest on or any Additional Amounts with respect to any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents for any series of Securities and any related coupons appertaining thereto, the Company will, on or before each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will: (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct -65- 75 any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of any series and remaining unclaimed for three years after such principal (and premium, if any) or interest has become due and payable shall, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security and coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified herein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will, unless otherwise required by mandatory provisions of applicable escheat, or abandoned or unclaimed property law, be repaid to the Company. SECTION 1004. Existence. Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence. SECTION 1005. Maintenance of Properties. The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times; provided, however, that nothing in this Section shall prevent that Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. -66- 76 SECTION 1006. Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (b) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings. SECTION 1007. Statement by Officers as to Default. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof so long as any Security is outstanding hereunder, an Officers' Certificate, stating that a review of the activities of the Company during such year and of performance under this Indenture has been made under the supervision of the signers thereof and whether or not to the best of their knowledge the Company is in default in the fulfillment of any of its obligations under this Indenture, and if the Company shall be in default, specifying each such default known to them and the nature and status thereof. SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004 to 1006, inclusive, or any covenant added for the benefit of any series of Securities as contemplated by Section 301 (unless otherwise specified pursuant to Section 301) if before or after the time for such compliance the Holders of a majority in principal amount of the Outstanding Securities of all series affected by such omission (acting as one class) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. SECTION 1009. Additional Amounts. If the Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series or any coupon appertaining thereto Additional Amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of, any Security of any series or payment of any related coupon or -67- 77 the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided for in this Section to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the provisions of this Section and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made. If the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons who are United States Aliens without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers' Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of securities or coupons and the Company will pay to such Paying Agent the Additional Amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 1101. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article. SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than -68- 78 all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. SECTION 1103. Selection by Trustee of Securities to be Redeemed. If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series or of the principal amount of global Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 1104. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 107 to Holder of Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, -69- 79 (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date, (5) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, are to be surrendered for payment of the Redemption Price, (6) that the redemption is for a sinking fund, if such is the case, (7) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all coupons appertaining thereto maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price or security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished, and (8) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on such Redemption Date pursuant to Section 305 or otherwise, the last date, as determined by the Company, on which such exchanges may be made. A notice of redemption as contemplated by Section 107 need not identify particular Registered Securities to be redeemed. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company's request, by the Trustee in the name and at the expense of the Company. SECTION 1105. Deposit of Redemption Price. On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, and any Additional Amounts with respect to, all the Securities which are to be redeemed on that date. SECTION 1106. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be -70- 80 redeemed, except to the extent provided below, shall be redeemed. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons appertaining thereto, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (and any Additional Amounts) to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of coupons appertaining thereto for such interest; and provided, further, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 307. If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons appertaining thereto maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons appertaining thereto, or the surrender of such missing coupon or coupons appertaining thereto may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that interest (and any Additional Amounts with respect thereto) represented by coupons appertaining thereto shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of those coupons appertaining thereto. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security or, in the case of Original Issue Discount Securities, the Securities' Yield to Maturity. SECTION 1107. Securities Redeemed in Part. Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and Stated Maturity, of any authorized denomination as -71- 81 requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. ARTICLE TWELVE SINKING FUNDS SECTION 1201. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment", and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment". Unless otherwise provided by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series. SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The Company (a) may deliver Outstanding Securities of a series (other than any previously called for redemption), together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto, and (b) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as provided for by the terms of such series; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking payment shall be reduced accordingly. SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the -72- 82 portion thereof, if any, which is to be satisfied by delivery of or by crediting Securities of that series pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107. ARTICLE THIRTEEN SUBORDINATION OF SECURITIES SECTION 1301. Securities Subordinate to Senior Indebtedness. The Company covenants and agrees, and each Holder of a Security or coupon, by his acceptance thereof, whether upon original issue or upon transfer or assignment, likewise covenants and agrees, that, to the extent and in the manner hereinafter set forth, the payment of the principal of (and premium, if any) and interest on, and any Additional Amounts with respect to, each and all of the Securities and the payment of any coupon is hereby expressly made subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness. SECTION 1302. Payment Over of Proceeds Upon Dissolution, Etc. In the event of any Proceeding, the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Securities or coupons appertaining thereto are entitled to receive any Securities Payment (other than a Securities Payment in the form of Permitted Junior Securities), and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any Securities Payment (other than any Securities Payment in the form of Permitted Junior Securities), which may be payable or deliverable in any such Proceeding. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have received any Securities Payment (other than any Securities Payment in the form of Permitted Junior Securities) before all Senior Indebtedness is paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, and if the Trustee or such Holder, as the case may be, shall, at or prior to the time of such Securities Payment have actual knowledge of such fact, then and in each such event, such Securities -73- 83 Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of all or substantially all of its properties and assets as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a Proceeding for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. SECTION 1303. No Payment When Designated Senior Indebtedness in Default. In the event that any Payment Event of Default shall have occurred and be continuing, no Securities Payment (other than a Securities Payment in the form of Permitted Junior Securities) shall be made unless and until such Payment Event of Default shall have been cured or waived or shall have ceased to exist or all amounts then due and payable in respect of Designated Senior Indebtedness shall have been paid in full, or provision shall have been made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Designated Senior Indebtedness. In the event that any Non-Payment Event of Default shall have occurred with respect to any Designated Senior Indebtedness and be continuing, then, upon the receipt by the Trustee and the Company of written notice of such Non-Payment Event of Default from the trustee or representative for, or holders of, at least a majority in principal amount of such Designated Senior Indebtedness, no Securities Payment (other than a Securities Payment in the form of Permitted Junior Securities) shall be made during the period (the "Payment Blockage Period") commencing on the date of receipt of such written notice and ending on the earlier of (a) the date on which such Non-Payment Event of Default shall have been cured or waived or shall have ceased to exist or any acceleration of the Designated Senior Indebtedness to which such Non-Payment Event of Default relates shall have been rescinded or annulled or such Designated Senior Indebtedness shall have been discharged and (b) the 176th day after the date of such receipt of such written notice. During any 360-day period the aggregate of all Payment Blockage Periods shall not exceed 176 days and there shall be a period of at least 184 consecutive days in each 360-day period when no Payment Blockage Period is in effect. For all purposes of this paragraph, no Non-Payment Event of Default that existed or was continuing on the date of commencement of any Payment Blockage Period shall be, or be made, the basis for the commencement of a -74- 84 subsequent Payment Blockage Period by a trustee or representative for, or holders of, Designated Senior Indebtedness unless such Payment Event of Default or Non-Payment Event of Default shall have been cured for a period of not less than 90 consecutive days. In the event that, notwithstanding the foregoing, the Company shall make any Securities Payment to the Trustee or the Holder of any Security at a time when such Securities Payment was prohibited by the foregoing provisions of this Section, and if, at or prior to the time of such Securities Payment, the Trustee or such Holder, as the case may be, had actual knowledge of such fact, then and in such event such Securities Payment shall be paid over and delivered forthwith to the Company. The provisions of this Section shall not apply to any Securities Payment with respect to which Section 1302 would be applicable. SECTION 1304. Payment Permitted if No Default. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Company, at any time except during the pendency of any Proceeding referred to in Section 1302 or under the conditions described in Section 1303, from making Securities Payments, or (b) the application by the Trustee of any money deposited with it hereunder to Securities Payments or the retention of such Securities Payment by the Holders, if, at the time of such application by the Trustee, it did not have actual knowledge that such Securities Payment would have been prohibited by the provisions of this Article. SECTION 1305. Subrogation to Rights of Holders of Senior Indebtedness. Subject to the payment in full of all amounts due and to become due on or in respect of Senior Indebtedness, or the provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, the Holders of the Securities or coupons appertaining thereto shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of this Article to the rights of the holders of such Senior Indebtedness to receive payments and distributions of cash, property and securities applicable to the Senior Indebtedness until the principal of and premium, if any, and interest on, and any Additional Amounts with respect to, the Securities or coupons appertaining thereto shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which the Holders of the Securities or coupons appertaining thereto or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Indebtedness by Holders of the Securities or coupons appertaining thereto or the Trustee, shall, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities or coupons appertaining thereto, be deemed -75- 85 to be a payment or distribution by the Company to or on account of the Senior Indebtedness. SECTION 1306. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities or coupons appertaining thereto on the one hand and the holders of Senior Indebtedness on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities or coupons appertaining thereto is intended to or shall (a) impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Securities or coupons appertaining thereto, the obligation of the Company, which is absolute and unconditional (and which, subject to the rights under this Article of the holders of Senior Indebtedness, is intended to rank equally with all other general obligations of the Company), to pay to the Holders of the Securities or coupons appertaining thereto the principal of and premium, if any, and interest on, and any Additional Amounts with respect to, the Securities or coupons appertaining thereto as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company of the Holders of the Securities or coupons appertaining thereto and creditors of the Company other than the holders of Senior Indebtedness; or (c) prevent the occurrence of an Event of Default or prevent the Trustee or the Holder of any Security or coupon from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Indebtedness to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder. SECTION 1307. Trustee to Effectuate Subordination. Each Holder of a Security or coupon by his acceptance thereof, whether upon original issue or upon transfer or assignment, authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate, as between the Holders of the Securities and the holders of Senior Indebtedness, the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable bankruptcy law of the Company (whether in bankruptcy, insolvency or receivership proceedings or otherwise), the timely filing of a claim for the unpaid balance of such Holder's Securities in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 10 days before the expiration of the time to file such claims of proofs, then the holders of Senior Indebtedness, jointly, or their representative shall have the right to file an appropriate claim for and on behalf of the Holders. Nothing contained herein shall be construed to authorize the Trustee or the holders of Senior Indebtedness to authorize or consent to or to accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or -76- 86 the rights of any Holder or to authorize the Trustee or the holders of Senior Indebtedness to vote in respect of the claim of any Holder in any such proceeding. SECTION 1308. No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities or coupons appertaining thereto and without impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities or coupons appertaining thereto to the holders of Senior Indebtedness, do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any manner Senior Indebtedness or any instrument evidencing the same or any agreement under which Senior Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; (c) release any Person liable in any manner for the collection of Senior Indebtedness and settle or compromise Senior Indebtedness (which, to the extent so settled and compromised, shall be deemed to have been paid in full for all purposes hereof); (d) apply any amounts received to any liability of the Company owing to holders of Senior Indebtedness; and (e) exercise or refrain from exercising any rights against the Company and any other Person. SECTION 1309. Notice to Trustee. The Company shall give prompt written notice to the Trustee of any default or event of default with respect to any Senior Indebtedness or of any fact known to the Company which would prohibit the making of any payment to or by the Trustee in respect of the Securities or coupons appertaining thereto. Notwithstanding the provisions of this Article or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities or coupons appertaining thereto, unless and until the Trustee shall have received written notice thereof from the Company or a holder of Senior Indebtedness or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section at least five Business Days prior to the -77- 87 date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of and premium, if any, or interest on any Security), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purpose for which such money was received and shall not be affected by any notice to the contrary which may be received by it within five Business Days prior to such date. Subject to the provisions of Section 601, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a trustee therefor) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment. SECTION 1310. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this Article, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities or coupons appertaining thereto shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which any Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities or coupons appertaining thereto, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. SECTION 1311. Trustee Not Fiduciary for Holders of Senior Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. SECTION 1312. Rights of Trustee as Holder of Senior Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Indebtedness which may at any time be held by it, -78- 88 to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607. SECTION 1313. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then acting hereunder, the term "Trustee" as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that Section 1312 shall not apply to the Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent. SECTION 1314. Application by Trustee of Assets Deposited with It. All money and U.S. Government Obligations deposited in trust with the Trustee pursuant to and in accordance with Section 401 shall be for the sole benefit of the Holders and shall not be subject to this Article. Otherwise, any deposit of assets by the Company with the Trustee or any Paying Agent (whether or not in trust) for the payment of principal of (or premium, if any) or interest on, or any Additional Amounts with respect to, any Securities shall be subject to the provisions of this Article. ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES SECTION 1401. Purposes for Which Meetings May Be Called. A meeting of Holders of Securities of any or all series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series. SECTION 1402. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1401, to be held at such time and at such place in ___________________________, in the Borough of Manhattan, the City of New York, or in London, as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general -79- 89 terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 107, not less than 20 nor more than 180 days prior to the date fixed for the meeting (or, in the case of a meeting of Holders with respect to Securities of a series all or part of which are represented by a Book-Entry Security, not less than 20 nor more than 40 days). (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in aggregate principal amount of the Outstanding Securities of any series, shall have requested the Trustee for any such series to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1401, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 30 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in __________________, in the Borough of Manhattan, the City of New York, or in London, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section. SECTION 1403. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 1404. Quorum; Action. The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case, the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Subject to Section 1405(d), notice of the reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be -80- 90 reconvened. Notice of the reconvening of an adjourned meeting shall state expressly that Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series shall constitute a quorum. Notwithstanding the foregoing, no meeting of Holders with respect to Securities of any series which is represented in whole or in part by a Book-Entry Security shall be adjourned to a date more than 90 days after the date on which notice of such meeting was originally given in accordance with Section 1402 unless the Trustee shall send out a new notice of meeting. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent or waiver which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage that is less than a majority in aggregate principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in aggregate principal amount of the Outstanding Securities of that series. Except as limited by the proviso to Section 902, any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the coupons appertaining thereto, whether or not present or represented at the meeting. SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a) The holding of Securities shall be proved in the manner specified in Section 105 and the appointment of any proxy shall be proved in the manner specified in Section 105 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 105 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 105 or other proof. (b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1402(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting. -81- 91 (c) At any meeting each Holder of a Security of such series and each proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or as a proxy. (d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1402 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice. SECTION 1406. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to such record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that such notice was given as provided in Section 1402 and, if applicable, Section 1404. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. * * * This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. -82- 92 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. SNYDER OIL CORPORATION (CORPORATE SEAL) By:___________________________ Name:______________________ Title:_____________________ ______________________________ (CORPORATE SEAL) By:___________________________ Name:______________________ Title:_____________________ -83- 93 STATE OF TEXAS ) ) ss. COUNTY OF DALLAS ) On the ____ day of _______________, 19__, before me personally came _________________________, to me known, who, being by me duly sworn, did depose and say that he is _______________________________ of SNYDER OIL CORPORATION, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. _______________________________________ Notary Public in Dallas County for the State of Texas My Commission Expires _________________ (NOTARIAL SEAL) STATE OF TEXAS ) ) ss: COUNTY OF DALLAS ) On the ____ day of _______________, 19__, before me personally came ____________________________, to me known, who, being by me duly sworn, did depose and say that he is _________________________________ of _____________________________ _______________________, one of the corporations described in and which executed the foregoing instrument; that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by authority of the Board of Directors of said corporation, and that he signed his name thereto by like authority. _______________________________________ Notary Public in Dallas County for the State of Texas My Commission Expires _________________ (NOTARIAL SEAL) -84- 94 EXHIBIT A FORM OF CERTIFICATE TO BE GIVEN BY OWNER OF SECURITY OR BENEFICIAL OWNER OF INTEREST IN A GLOBAL SECURITY SNYDER OIL CORPORATION (TITLE OF SECURITIES) (THE "SECURITIES") This is to certify that as of the date hereof, and except as set forth below, the above-captioned Securities that are held by the undersigned or held by you for the account of the undersigned (a) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States persons"), (b) are owned by United States person(s) that (i) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution hereby certifies, on its own behalf or through its agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 as amended, and the regulations thereunder), or (c) are owned by United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)) and in addition if the owner of the Securities is a United States or foreign financial institution described in clause (c) above (whether or not also described in clause (a) or (b)) this is to further certify that such financial institution has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify that, except as set forth below, (a) in the case of debt securities, the Securities are beneficially owned by (i) non-U.S. person(s) or (ii) U.S. person(s) who purchased the Securities in transactions which did not require registration under the Act; or (b) in the case of equity securities, the Securities are owned by (i) non-U.S. person(s) (and such person(s) are not acquiring the Securities for the account or benefit of U.S. person(s)) or (ii) U.S. person(s) who purchased the Securities in a transaction which did not require registration under the Act. If this certification is being delivered in connection with the exercise of warrants pursuant to Section 230.902(m) of Regulation S under the Act, then this is further to certify that, except as set forth below, the Securities are being exercised by and on behalf A-1 95 of non-U.S. person(s). As used in this paragraph the term "U.S. person" has the meaning given to it by Regulation S under the Act. As used herein, "United States" means the United States of America (including the States and District of Columbia); and its "possessions" including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands. We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the Securities held by you for our account in accordance with your operating procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification applies as of such date. This certification excepts and does not relate to $______________ of such interest in the above Securities in respect of which we are not able to certify and as to which we understand exchange and delivery of definitive Securities (or, if relevant, exercise of any rights or collection of any interest) cannot be made until we do so certify. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification to any interested party in such proceedings. *Dated: __________________, 199__ NAME OF PERSON MAKING CERTIFICATION By:_______________________________ As, or as Agent for, the beneficial owner(s) of the Securities to which this Certificate relates By:_______________________________ As, or as Agent for, the financial institution (if any) through which a United States Person acquired the Securities to which this Certificate relates __________________________________ *To be dated no earlier than the Certification Date. A-2 96 EXHIBIT B FORM OF CERTIFICATION TO BE GIVEN BY THE EURO-CLEAR OPERATOR OR CEDEL SNYDER OIL CORPORATION (TITLE OF SECURITIES) (THE "SECURITIES") This is to certify that, based solely on certifications we have received in writing, by tested telex or by electronic transmission from member organizations appearing in our records as persons being entitled to a portion of the principal amount set forth below (our "Member Organizations") substantially to the effect set forth in the Indenture, dated as of ___________________, 199___ between Snyder Oil Corporation and ______________________________________, as of the date hereof, ( ) principal amount of the above captioned Securities (a) is owned by persons that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source ("United States persons"), (b) is owned by United States persons that (i) are foreign branches of United States financial institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account or for resale, or (ii) acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (i) or (ii), each such United States financial institution has certified, on its own behalf or through its agent, that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (c) is owned by United States or foreign financial institutions for purposes of resale during the restricted period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that the United States or foreign financial institutions described in clause (c) above (whether or not also described in clause (a) or (b)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its possessions. If the Securities are of the category contemplated in Section 230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the "Act"), then this is also to certify with respect to the principal amount of Securities set forth above that, except as set forth below, we have received in writing, by tested telex or by electronic transmission, from our Member Organizations entitled to a portion of such principal amount, certifications with respect to such portion, substantially to the effect set forth in the Indenture. We further certify (a) that we are not making available herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) any portion of the temporary global Security excepted in such certifications and (b) that as of the date hereof B-1 97 we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, exercise of any rights or collection of any interest) are no longer true and cannot be relied upon as of the date hereof. We understand that this certification is required in connection with certain tax laws and, if applicable, certain securities laws of the United States. In connection therewith, if administrative or legal proceedings are commenced or threatened in connection with which this certification is or would be relevant, we irrevocably authorize you to produce this certification or a copy hereof to any interested party in such proceedings. Dated:______________, 199__ (dated the Exchange Date or the Interest Payment Date) _______________________________________ as operator of the Euro-clear System or (CEDEL S.A.) By ____________________________________ B-2 EX-12.1 5 COMPUTATION OF RATIO OF EARNINGS 1 EXHIBIT 12.1 SNYDER OIL CORPORATION COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (Unaudited)
Three Months Ended Years ended December 31, March 31, -------------------------------------------------------- ----------- 1989 1990 1991 1992 1993 1994 --------- --------- -------- -------- -------- -------- (Dollars in thousands) Income before taxes, extraordinary item, and and accounting change $ 7,321 $ 9,857 $11,439 $17,305 $34,909 $ 8,595 Interest expense 761 6,273 8,452 4,997 5,315 1,342 ------- ------- ------- ------- ------- ------- Earnings before fixed charges 8,082 16,130 19,891 22,302 40,224 9,937 ======= ======= ======= ======= ======= ======= Fixed Charges: Interest expense 761 6,273 8,452 4,997 5,315 1,342 ------- ------- ------- ------- ------- ------- Total fixed charges $ 761 $ 6,273 $ 8,452 $ 4,997 $ 5,315 $ 1,342 ======= ======= ======= ======= ======= ======= Ratio of earnings to fixed charges 10.62 2.57 2.35 4.46 7.57 7.40 ======= ======= ======= ======= ======= =======
2 SNYDER OIL CORPORATION COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED DIVIDENDS (Unaudited)
Three Months Ended Years ended December 31, March 31, ------------------------------------------------------- ----------- 1989 1990 1991 1992 1993 1994 -------- -------- -------- -------- -------- -------- (Dollars in thousands) Income before taxes, extraordinary item, and and accounting change $ 7,321 $ 9,857 $11,439 $17,305 $34,909 $ 8,595 Interest expense 761 6,273 8,452 4,997 5,315 1,342 ------- ------- ------- ------- ------- ------- Earnings before fixed charges 8,082 16,130 19,891 22,302 40,224 9,937 ======= ======= ======= ======= ======= ======= Fixed Charges: Interest expense 761 6,273 8,452 4,997 5,315 1,342 Preferred stock dividends 0 0 453 4,800 9,100 2,739 ------- ------- ------- ------- ------- ------- Total fixed charges $ 761 $ 6,273 $ 8,905 $ 9,797 $14,415 $ 4,081 ======= ======= ======= ======= ======= ======= Ratio of earnings to combined fixed charges and preferred dividends 10.62 2.57 2.23 2.28 2.79 2.43 ======= ======= ======= ======= ======= =======
EX-23.2 6 CONSENT OF ARTHUR ANDERSEN 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we herby consent to the use of our reports and to all references to our Firm included in or made a part of this registration statement. ARTHUR ANDERSEN & CO. Dallas, Texas July 29, 1994 EX-23.3 7 CONSENT OF NETHERLAND, SEWELL & ASSOCIATES 1 EXHIBIT 23.3 CONSENT OF INDEPENDENT PETROLEUM ENGINEERS AND GEOLOGISTS As independent petroleum consultants, we hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our reports to Snyder Oil Corporation dated February 10, 1994 and February 11, 1994 appearing at Exhibit 99.1 and Exhibit 99.2 of Snyder Oil Corporation's Annual Report on Form 10-K for the year ended December 31, 1993. We also consent to all references to our firm included as a part of this Registration Statement on Form S-3 to be filed on or about July 28, 1994. NETHERLAND, SEWELL & ASSOCIATES, INC. By /s/ Frederic D. Sewell -------------------------------- Frederic D. Sewell, President Dallas, Texas July 26, 1994 -----END PRIVACY-ENHANCED MESSAGE-----