AMENDMENT NO. 4
This Amendment No. 4 dated as of August 10, 1999 ("Agreement") is among
Seitel, Inc., a Delaware corporation ("Borrower"); the Lenders (as defined
below) executing this Agreement; and The First National Bank of Chicago, as
agent for the Lenders ("Agent").
INTRODUCTION
A. The Borrower, the Lenders, and the Agent are parties to the Seitel, Inc.
Revolving Credit Agreement dated as of July 22, 1996, as amended by the First
Amendment dated as of August 30, 1996, the Second Amendment dated as of May 1,
1997, and the Third Amendment dated as of March 16, 1998 (as so amended, the
"Credit Agreement").
B. The Borrower, the Lenders, and the Agent desire to amend the Credit
Agreement in certain respects as set forth herein.
THEREFORE, the Borrower, the Lenders, and the Agent hereby agree as
follows:
Section 1. Definitions; References. Unless otherwise defined in this
Agreement, terms used in this Agreement which are defined in the Credit
Agreement shall have the meanings assigned to such terms in the Credit
Agreement.
Section 2. Amendments.
(a) In Article I of the Credit Agreement the following definitions are
amended in their entirety to read as follows or added in alphabetical order:
"Consolidated Debt" means, as of any date of determination, the total of
all Debt of the Borrower and the Restricted Subsidiaries outstanding on such
date, after eliminating all offsetting debits and credits between the Borrower
and the Restricted Subsidiaries and all other items required to be eliminated in
the course of the preparation of consolidated financial statements of the
Borrower and the Restricted Subsidiaries prepared in accordance with Agreement
Accounting Principles; provided that Consolidated Debt shall not include
Qualified Capital Obligations.
"Consolidated Net Worth" means, at any time, the sum, without duplication,
of (a) the total stockholders' equity which would be shown in consolidated
financial statements of the Borrower and the Restricted Subsidiaries prepared at
such time in accordance with Agreement Accounting Principles and (b) Qualified
Capital.
"Net Proceeds of Qualified Capital" means, with respect to any period, cash
proceeds (net of all costs and out-of-pocket expenses incurred in connection
therewith and in connection with the issuance and sale of any related Trust
Preferred Securities, including, without limitation, placement, underwriting and
brokerage fees and expenses) received by the Borrower during such period from
the sale of all Qualified Junior Subordinated Notes.
"Qualified Capital" means the total amount of capital in respect of
Qualified Junior Subordinated Notes and the Trust Preferred Securities related
thereto which would, on a consolidated basis, be shown in consolidated financial
statements of the Borrower and the Subsidiaries prepared at such time in
accordance with Agreement Accounting Principles, provided that in no event shall
the aggregate amount of Qualified Capital at any time exceed $125,000,000.
"Qualified Capital Obligations" means obligations of the Borrower in
respect of any Qualified Junior Subordinated Notes and Qualified Junior
Subordinated Guaranties.
"Qualified Junior Subordinated Guaranty" means, in respect of any issue of
Trust Preferred Securities, a Guaranty by the Borrower to the holders of such
Trust Preferred Securities of (a) the payment of all preferred cumulative cash
dividends accumulating thereon and (b) the payments due on liquidation or
redemption of such Trust Preferred Securities, but only in each case to the
extent of funds held by the Special Purpose Trust which shall have issued such
Trust Preferred Securities, and the obligations under which Guaranty shall be
unsecured and rank subordinate and junior in right of payment to all Senior Debt
(including, without limitation, all Debt of the Borrower under this Agreement,
the Loan Documents and the Notes) to the same extent and on the same terms as
the Qualified Junior Subordinated Notes issued by the Borrower to such Special
Purpose Trust are subordinated to Senior Debt.
"Qualified Junior Subordinated Notes" means any notes issued by the
Borrower to a Special Purpose Trust in a principal amount equal to the proceeds
received by such Special Purpose Trust from the issuance of Trust Preferred
Securities and paid by such Special Purpose Trust to the Borrower in
consideration for such notes, which notes shall (a) not mature, or otherwise
require the payment of any of the principal thereof, prior to June 1, 2029, (b)
be subject to the right of the Borrower to defer the payment of interest thereon
at any time or from time to time for a period of at least 20 consecutive
quarterly periods, during which deferral period the Borrower shall not pay any
dividends with respect to any of its capital stock or pay any principal,
interest or other amounts owing in respect of any Qualified Capital Obligations
or other Subordinated Debt, (c) be unsecured, (d) rank subordinate and junior in
right of payment to all Senior Debt (including, without limitation, all Debt of
the Borrower under this Agreement, the Loan Documents and the Notes) upon the
terms set forth in Exhibit A to the Amendment No. 4 dated as of August 10, 1999,
among the Borrower, the Lenders, and the Agent, and (e) when aggregated with all
other such notes, not exceed $125,000,000 in aggregate outstanding principal
amount.
"Special Purpose Trust" means a statutory business trust created under the
laws of the State of Delaware pursuant to the filing of a certificate of trust
with the Secretary of State of the State of Delaware, (a) the existence of which
shall be for the exclusive purpose of (i) issuing Trust Common Securities to the
Borrower and issuing and selling Trust Preferred Securities to investors, (ii)
using the proceeds from such Trust Preferred Securities to acquire Qualified
Junior Subordinated Notes and (iii) engaging in only those other activities
necessary or incidental to the foregoing, (b) the sole assets of which will be
such Qualified Junior Subordinated Notes and the proceeds thereof and (c) the
sole source of revenue of which will be payments under such Qualified Junior
Subordinated Notes. Notwithstanding anything else herein, any Special Purpose
Trust shall be deemed to be an Unrestricted Subsidiary.
"Subordinated Debt" means any Debt or other obligations of the Borrower
(including, without limitation, Qualified Capital Obligations) other than Senior
Debt.
"Trust Common Securities" means, in respect of a Special Purpose Trust,
securities issued by such Special Purpose Trust representing common undivided
beneficial interests in the assets of such Special Purpose Trust, 100% of which
securities shall be legally and beneficially owned by the Borrower.
"Trust Preferred Securities" means, in respect of a Special Purpose Trust,
securities issued by such Special Purpose Trust, having a stated par value and
liquidation value and entitling the holders thereof to the payment (unless
deferred) of preferred cumulative cash distributions at a fixed annual rate,
representing preferred undivided beneficial interests in the assets of such
Special Purpose Trust, provided that at the time of the initial issuance
thereof, the Senior Notes shall receive an investment grade rating from, or an
investment grade rating of the Senior Notes shall be confirmed by, a nationally
recognized rating agency.
(b) Paragraph (a) of Section 6.12 is amended in its entirety to read
as follows:
6.12 Restricted Payments and Restricted Investments.
(a) Limitation. The Borrower will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, declare, make or incur
any liability to make any Restricted Payment or make or authorize any
Restricted Investment unless immediately after giving effect to such
action:
(i) the sum of (x) the aggregate amount of outstanding Restricted
Investments (valued immediately after such action), plus (y) the
aggregate amount of Restricted Payments of the Borrower and the
Restricted Subsidiaries declared or made during the period commencing
on the date of this Agreement, and ending on the date such Restricted
Payment or Restricted Investment is declared or made, inclusive, would
not exceed the sum of
(A) $10,000,000, plus
(B) 50% of Consolidated Net Income for the period commencing
January 1, 1995 and ending on the date such Restricted Payment or
such Restricted Investment is declared or made (or minus 100% of
Consolidated Net Income for such period if Consolidated Net
Income for such period is a loss), plus
(C) the aggregate amount of Net Proceeds of Common Stock of
the Borrower for such period, plus
(D) the aggregate amount of Net Proceeds of Qualified
Capital for such period; and
(ii) the Borrower could incur, pursuant to Section 6.20, at least
$1 of additional Debt owing to a Person other than a Restricted
Subsidiary; and
(iii) no Default or Unmatured Default would exist.
Section 3. Representations and Warranties. The Borrowers represent and
warrant to the Agent and the Lenders that:
(a) the representations and warranties set forth in the Credit Agreement
are true and correct in all material respects as of the date of this Agreement,
except to the extent any such representation or warranty is stated to relate
solely to an earlier date, in which case such representation or warranty was
true and correct in all material respects as of such earlier date;
(b) (i) the execution, delivery, and performance of this Agreement have
been duly authorized by appropriate proceedings, and (ii) this Agreement
constitutes a legal, valid, and binding obligation of the Borrowers, enforceable
in accordance with its terms, except as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the rights of
creditors generally and general principles of equity; and
(c) as of the effectiveness of this Agreement, no Default or Event of
Default has occurred and is continuing.
Section 4. Effectiveness. This Agreement shall become effective and the
Credit Agreement shall be amended as provided in this Agreement upon the
occurrence of the following conditions precedent:
(a) the Borrowers, the Agent, and the Required Lenders shall have delivered
duly and validly executed originals of this Agreement to the Agent; and
(b) the representations and warranties in this Agreement shall be true and
correct in all material respects.
Section 5. Effect on Loan Documents.
(a) Except as amended herein, the Credit Agreement and the Loan Documents
remain in full force and effect as originally executed and amended heretofore.
Nothing herein shall act as a waiver of any of the Agent's or Lenders' rights
under the Loan Documents, as amended, including the waiver of any Default or
Unmatured Default, however denominated.
(b) This Agreement is a Loan Document for the purposes of the provisions of
the other Loan Documents. Without limiting the foregoing, any breach of
representations, warranties, and covenants under this Agreement may be a Default
or Unmatured Default under other Loan Documents.
Section 6. Assignment. Bank One, Texas, N.A. ("Bank One") hereby assigns
and delegates to The First National Bank of Chicago ("First Chicago") effective
as of the date hereof all of its rights and obligations under the Credit
Agreement, and First Chicago hereby accepts such assignment and delegation and
agrees to assume all of Bank One's obligations under the Credit Agreement. Bank
One's rights under Section 9.7 of the Credit Agreement shall survive this
assignment. The Borrower agrees, at First Chicago's request, to execute and
deliver a replacement Note to First Chicago in the amount of First Chicago's
Commitment after giving effect to this assignment.
Section 7. Choice of Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of Illinois.
Section 8. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original.
EXECUTED as of the date first above written.
SEITEL, INC.
By: /s/Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
THE FIRST NATIONAL BANK OF
CHICAGO, individually and as Agent
By: /s/Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
BANK ONE, TEXAS, N.A.
By: /s/X.X. Xxxxxx
-----------------------------------------
Name: X.X. Xxxxxx
Title: Assistant Vice President
ACKNOWLEDGMENT AND CONSENT BY SUBSIDIARY GUARANTORS
Each of the undersigned Subsidiary Guarantors (i) acknowledges its receipt
of a copy of and hereby consents to all of the terms and conditions of the
foregoing Amendment No. 4 and (ii) reaffirms its obligations under the
Subsidiary Guaranty dated as of July 22, 1996 in favor of The First National
Bank of Chicago, as agent.
SEITEL DATA CORP.
SEITEL DELAWARE, INC.
SEITEL MANAGEMENT, INC.
SEITEL GEOPHYSICAL, INC.
DDD ENERGY, INC.
SEITEL GAS & ENERGY CORP.
SEITEL POWER CORP.
SEITEL NATURAL GAS, INC.
MATRIX GEOPHYSICAL, INC.
EXSOL, INC.
DATATEL, INC.
SEITEL OFFSHORE CORP.
GEO-BANK, INC.
ALTERNATIVE COMMUNICATIONS
ENTERPRISES, INC.
SEITEL INTERNATIONAL, INC.
AFRICAN GEOPHYSICAL, INC.
By: /s/Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Officer
SEITEL DATA LTD.
By: SEITEL DELAWARE, INC.,
its general partner
By: /s/Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X.Xxxxxx
Title: Vice President
EXHIBIT A
Subordination Terms
Note: The term "Securities" refers to the instruments evidencing the
debt subordinated by the following provisions; the term "Holder"
refers to a holder of Securities.
SECTION [1.01]. Securities Subordinate to Senior Indebtedness
The Securities shall be subordinated to Senior Indebtedness as set forth in
this Article [One]. The Company covenants and agrees, and each Holder of a
Security of any series by such Holder's acceptance thereof likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth in this
Article [One], the indebtedness represented by the Securities of such series and
the payment of the principal amount, interest, premium (if any), and such other
amounts, if any, payable in respect of each and all of the Securities of such
series are hereby expressly made subordinate and subject in right of payment to
the prior payment in full of all Senior Indebtedness; provided, however, that no
provision of this Article [One] shall prevent the occurrence of any default or
Event of Default hereunder.
"Credit Agreement" means the Revolving Credit Agreement dated as of July
27, 1996 among The First National Bank of Chicago, as agent, the lenders party
thereto, and the Company, as amended and as the same may be further amended or
restated in whole or in part from time to time.
"Senior Notes" means, collectively, (i) (a) the Company's 7.17% Series A
Senior Notes due December 30, 2001 in the original aggregate principal amount of
$25,000,000, (b) the Company's 7.17% Series B Senior Notes due December 30, 2002
in the original aggregate principal amount of $27,500,000, and (c) the Company's
Series C Senior Notes due December 30, 2002 in the original aggregate principal
amount of $22,500,000, in each case, issued pursuant to separate Note Purchase
Agreements, dated as of December 28, 1995, as such notes and agreements may be
amended from time to time, and (ii) (a) the Company's 7.03% Series D Senior
Notes due February 15, 2004 in the original aggregate principal amount of
$20,000,000, (b) the Company's 7.28% Series E Senior Notes due February 15, 2009
in the original aggregate principal amount of $75,000,000, and (c) the Company's
Series F Senior Notes due February 15, 2009 in the original aggregate principal
amount of $43,000,000, in each case, issued pursuant to separate Note Purchase
Agreements, dated as of February 12, 1999, as such notes and agreements may be
amended from time to time.
"Senior Indebtedness" means the principal of (and premium or make-whole
amount, if any) and interest on (including interest, if any, accruing after the
filing of a petition initiating any proceeding pursuant to any Federal
bankruptcy law or any other applicable Federal or State law) and other amounts
due on or in connection with the Senior Notes, the Credit Agreement, and any
Indebtedness of the Company incurred, assumed or guaranteed by the Company,
whether outstanding on the date of the Indenture or thereafter incurred, assumed
or guaranteed and all renewals, extensions and refundings of any such
Indebtedness of the Company; provided, however, that the following will not
constitute Senior Indebtedness:
(a) any Indebtedness of the Company as to which, in the instrument creating
the same or evidencing the same or pursuant to which the same is outstanding, it
is expressly provided that such Indebtedness of the Company shall be
subordinated to or pari passu with the Securities;
(b) Indebtedness of the Company in respect of the Securities;
(c) any Indebtedness of the Company constituting trade accounts payable
arising in the ordinary course of business;
(d) any Indebtedness of the Company initially issued to any other [trust
which issues preferred securities or other securities similar to preferred
securities]; and
(e) any Indebtedness of the Company to any Subsidiary of the Company, other
than a trust referred to in the preceding clause (d).
SECTION [1.02]. Payment Over of Proceeds upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of
(a) 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, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company,
then and in such event:
(1) 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, before the
Holders of the Securities of any series are entitled to receive any payment on
account of the principal amount, interest, premium (if any), or such other
amounts, if any, as may be provided for in respect of the Securities of such
series; and
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, by set-off or otherwise, to
which the Holders or the Trustee would be entitled but for the provisions of
this Article [One], including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Indebtedness of the
Company being subordinated to the payment of the Securities of such series,
shall be paid by the liquidating trustee or agent or other person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Indebtedness
or their representative or representatives or to the trustee or trustees under
any indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of, and premium or make-whole
amount, if any, and interest on the Senior Indebtedness held or represented by
each, to the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving affect to any concurrent payment or distribution
to the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this Section
[1.02], the Trustee or the Holder of any Security of any series shall receive
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Indebtedness of the Company being subordinated to the payment of the
Securities of such series, before all Senior Indebtedness is paid in full or
payment thereof provided for, and if such fact shall then have been made known
to the Trustee as provided in Section [1.11], or, as the case may be, such
Holder, then and in such event such payment or distribution 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.
For purposes of this Article [One] only, the words "cash, property or
securities," or any combination thereof, shall be deemed not to include shares
of capital stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to the extent
provided in this Article [One] with respect to the Securities, to the payment of
all Senior Indebtedness which may at the time be outstanding and to any
securities issued to the holders of Senior Indebtedness in respect of the Senior
Indebtedness under any such plan of reorganization or readjustment.
SECTION [1.03]. Prior Payment to Senior Indebtedness upon Acceleration of
Securities.
In the event that any Securities of any series are declared due and payable
before their [Stated Maturity], then and in such event 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, before the Holders of the Securities of such
series are entitled to receive any payment (including any payment which may be
payable by reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities of such series) by the Company on
account of the principal of (or premium or make-whole amount, if any) or
interest or other amounts on Securities of such series or on account of the
purchase or other acquisition of Securities of such series.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section [1.03], and if such facts
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section [1.11]) or to such Holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section [1.03] shall not apply to any payment with
respect to which Section [1.02] would be applicable.
SECTION [1.04]. Default in Senior Indebtedness.
In the event and during the continuation of any default by the Company in
the payment of principal, premium, if any, interest or any other payment due on
any Senior Indebtedness of the Company, as the case may be, beyond any
applicable grace period with respect thereto, or in the event that the maturity
of any Senior Indebtedness of the Company has been accelerated because of any
default, then, in any such case, no payment shall be made by the Company with
respect to the principal (including redemption payments, if any) of, premium or
make-whole amount, if any, or interest or other amounts on the Securities until
such default is cured or waived or ceases to exist or any such acceleration or
demand for payment has been rescinded.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Securities of any series
prohibited by the foregoing provisions of this Section [1.04], and if such facts
then shall have been known or thereafter shall have been made known to the
Trustee (as provided in Section [1.11]) or to such Holder, as the case may be,
pursuant to the terms of this Indenture, then and in such event such payment
shall be paid over and delivered forthwith to the Company by or on behalf of the
person holding such payment for the benefit of the holders of Senior
Indebtedness.
The provisions of this Section [1.04] shall not apply to any payment with
respect to which Section [1.02] would be applicable.
SECTION [1.05]. Limitations on Acceleration and Enforcement.
At any time when the Company may not make payments in respect of the
Securities as a result of the application of Section [1.04], no Holder of
Securities will:
(a) accelerate or cause or permit the acceleration of the maturity of any
of the Securities; or
(b) commence, cause the commencement of, participate in or support any
action or proceeding (whether at law or in equity) against the Company to
recover all or any part of the indebtedness represented by the Securities or any
action to commence or prosecute any bankruptcy or similar proceeding in respect
of the Company unless the holders of at least a majority in principal amount of
the Senior Notes at the time outstanding (exclusive of Senior Notes then owned
by the Company or any of its subsidiaries or affiliates) shall have agreed in
writing in advance to, and shall have joined in, such proceedings.
SECTION [1.06]. Payment Permitted if No Default.
Nothing contained in this Article [One] 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 case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of
assets and liabilities of the Company referred to in Section [1.02] or under the
conditions described in Sections [1.03] or [1.04], from making payments at any
time of the principal amount, interest or such other amounts, if any, as may be
provided for in this Indenture, as the case may be, in respect of the
Securities, or (b) the application by the Trustee or the retention by any Holder
of any money deposited with it hereunder to the payment of or on account of the
principal amount, interest or such other amounts, if any, as may be provided for
in this Indenture, as the case may be, in respect of the Securities if the
Trustee did not have, at the time provided in the proviso to the first paragraph
of Section [1.11], notice that such payment would have been prohibited by the
provisions of this Article [One].
SECTION [1.07]. Subrogation Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of
the Securities of any series 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 [One] to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal amount,
interest or such other amounts, if any, as provided for in this Indenture, as
the case may be, in respect of the Securities of such series 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 of such series or the Trustee would be entitled
except for the provisions of this Article [One], and no payments pursuant to the
provisions of this Article [One] to the Company or to the holders of Senior
Indebtedness by Holders of the Securities of such series or the Trustee, shall,
as between the Company, its creditors other than holders of Senior Indebtedness
and the Holders of the Securities of such series, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION [1.08]. Provision Solely to Define Relative Rights.
The provisions of this Article [One] are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities of any
series, on one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article [One] or elsewhere in this Indenture or in the
Securities of any series is intended to or shall:
(a) impair, as between the Company and the Holders of the Securities of
such series, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities of such series the principal amount,
interest or such other amounts, if any, as may be provided for in this
Indenture, as the case may be, in respect of the Securities of such series as
and when the same shall become due and payable in accordance with the terms of
the Securities of such series and this Indenture and which, subject to the
rights under this Article [One] of the holders of Senior Indebtedness, is
intended to rank equally with all other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of the
Securities of such series and creditors of the Company other than holders of
Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security of such series from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article [One] of the
holders of Senior Indebtedness to receive cash, property or securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION [1.09]. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article [One] and appoints the Trustee such Holder's attorney-in-fact for any
and all such purposes.
SECTION [1.10]. No Waiver of Subordination Provision.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, by any such holder, or by any 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 of
any series, without incurring responsibility to the Holders of the Securities of
such series and without impairing or releasing the subordination provided in
this Article [One] or the obligations hereunder of the Holders of the Securities
of such series to the holders of Senior Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, or increase the amount of, 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; (ii) sell, exchange, release or otherwise dispose
of or deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for the payment or
collection of Senior Indebtedness; (iv) exercise or refrain from exercising any
rights against the Company or any other person; and (v) apply any sums paid in
respect of Senior Indebtedness to Senior Indebtedness, regardless of who made
such payment or how such payment was realized.
SECTION [1.11]. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities of any series. Failure to give such notice
shall not affect the subordination of the Securities of such series to Senior
Indebtedness. Notwithstanding the provisions of this Article [One] 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 of such series, unless and until the
Trustee shall have received written notice thereof in the manner prescribed by
this Indenture from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section [regarding the duties and
responsibilities of the Trustee], shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not have
received, at least three Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal amount, interest, or such other amounts
as may be provided for in this Indenture in respect of any Security), the notice
with respect to such money provided for in this Section [1.11], then, anything
herein contained to the contrary notwithstanding, the Trustee shall have the
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 three Business Days
prior to such date.
Subject to the provisions of Section [regarding the duties and
responsibilities of the Trustee], 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 or agent on behalf of such holder)
to establish that such notice has been given by a holder of Senior Indebtedness
(or a trustee or agent on behalf of any such holder). 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 [One], 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
[One], and if such evidence is not furnished, the Trustee may defer any payment
which it may be required to make for the benefit of such person pursuant to the
terms of this Indenture pending judicial determination as to the right of such
person to receive such payment.
SECTION [1.12]. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article [One], the Trustee, subject to the provisions of Section [regarding
the duties and responsibilities of the Trustee], and the Holders of the
Securities of any series shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, 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 of such series, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
[One].
SECTION [1.13]. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall be deemed not to owe any fiduciary duty to the holders of
Senior Indebtedness. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness (other than the Senior Notes) or of any facts
that would prohibit any payment hereunder unless the Trustee shall have received
notice thereof in the manner prescribed by this Indenture. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligation as are specifically set forth in this
Article [One] and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION [1.14]. 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 [One] with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article [One] shall apply to claims of, or payments to, the
Trustee under or pursuant to Section [concerning fees and expenses of the
Trustee].
SECTION [1.15]. Article [One] Applicable to Paying Agents.
The term "Trustee" as used in this Article [One] shall (unless the context
otherwise requires) be construed as extending to and including the Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article [One] in addition to or in place of the Trustee;
provided, however, that Sections [1.11] and [1.13] shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
