EXHIBIT T3C
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TEXAS PETROCHEMICALS LP
ISSUER
7-1/4% SENIOR SECURED CONVERTIBLE NOTES DUE 2009
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INDENTURE
DATED AS OF ______________ __, 2004
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[___________________]
TRUSTEE
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RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF _________ __, 2004
[TO BE COMPLETED]
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
Section 310 (a)(1)............................................. 6.9
(a)(2)................................................... 6.9
(a)(3)................................................... Not Applicable
(a)(4)................................................... Not Applicable
(b)...................................................... 6.8; 6.10
Section 311(a)................................................. 6.13
(b)...................................................... 6.13
Section 312(a)................................................. 7.1; 7.2(i)
(b)...................................................... 7.2(ii)
(c)...................................................... 7.2(iii)
Section 313(a)................................................. 7.3(i)
(b)...................................................... 7.3(ii)
(c)...................................................... 7.3(i); 7.3(ii)
(d)...................................................... 7.3(iii)
Section 314(a)................................................. 10.7
(a)(4)................................................... Not Applicable
(b)...................................................... Not Applicable
(c)(1)................................................... 1.2
(c)(2)................................................... 1.2
(c)(3)................................................... Not Applicable
(d)...................................................... Not Applicable
(e)...................................................... 1.2
Section 315(a)................................................. 6.1(a)
(b)...................................................... 6.2; 7.3(i)(F)
(c)...................................................... 6.1(b)
(d)...................................................... 6.1(c)
(d)(1)................................................... 6.1(a)(i)
(d)(2)................................................... 6.1(c)(ii)
(d)(3)................................................... 6.1(c)(iii)
(e)...................................................... 5.14
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- -------
Section 316(a)..................................................................... 1.1
(a)(1)(A).................................................................... 5.2; 5.12
(a)(1)(B).................................................................... 5.13
(a)(2)....................................................................... Not Applicable
(b).......................................................................... 5.8
(c).......................................................................... 1.4(v)
Section 317(a)(1).................................................................. 5.3
(a)(2)....................................................................... 5.4
(b).......................................................................... 10.3
Section 318(a)..................................................................... 1.7
TABLE OF CONTENTS
ARTICLE ONE Definitions and Other Provisions of General Application........................................ 1
1.1 Definitions.............................................................................. 1
1.2 Compliance Certificates and Opinions..................................................... 23
1.3 Form of Documents Delivered to Trustee................................................... 23
1.4 Acts of Holders.......................................................................... 24
1.5 Notices, Etc., to Trustee, Parent and Company............................................ 25
1.6 Notice to Holders; Waiver................................................................ 25
1.7 Conflict with Trust Indenture Act........................................................ 26
1.8 Effect of Headings and Table of Contents................................................. 26
1.9 Successors and Assigns................................................................... 26
1.10 Severability Clause...................................................................... 26
1.11 Benefits of Indenture.................................................................... 26
1.12 Governing Law............................................................................ 26
1.13 Legal Holidays........................................................................... 27
1.14 No Adverse Interpretation of Other Agreements............................................ 27
1.15 No Personal Liability of Directors, Officers, Employees and Stockholders................. 27
ARTICLE TWO Forms of Securities............................................................................ 27
2.1 Forms Generally.......................................................................... 27
2.2 Form of Face of Security................................................................. 28
2.3 Form of Reverse of Security.............................................................. 29
2.4 Form of Trustee's Certificate of Authentication.......................................... 32
2.5 Form of Election to Convert.............................................................. 32
ARTICLE THREE The Securities............................................................................... 33
3.1 Title and Terms.......................................................................... 33
3.2 Denominations............................................................................ 33
3.3 Execution, Authentication, Delivery and Dating........................................... 33
3.4 Temporary Securities..................................................................... 34
3.5 Registration, Registration of Transfer and Exchange...................................... 34
3.6 Mutilated, Destroyed, Lost and Stolen Securities......................................... 36
3.7 Payment of Interest; Interest Rights Preserved........................................... 37
3.8 Persons Deemed Owners.................................................................... 38
3.9 Cancellation............................................................................. 39
3.10 Computation of Interest.................................................................. 39
3.11 Form of Legend for Global Securities..................................................... 39
ARTICLE FOUR Satisfaction and Discharge.................................................................... 39
4.1 Satisfaction and Discharge of Indenture.................................................. 39
4.2 Application of Trust Money............................................................... 40
ARTICLE FIVE Remedies...................................................................................... 41
5.1 Events of Default........................................................................ 41
5.2 Acceleration of Maturity; Rescission and Annulment....................................... 43
5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.......................... 44
5.4 Trustee May File Proofs of Claim......................................................... 44
5.5 Trustee May Enforce Claims Without Possession of Securities.............................. 45
5.6 Application of Money Collected........................................................... 45
5.7 Limitation on Suits...................................................................... 46
5.8 Unconditional Right of Holders to Receive Principal, Premium and Interest and to
Convert.................................................................................. 46
5.9 Restoration of Rights and Remedies....................................................... 47
5.10 Rights and Remedies Cumulative........................................................... 47
5.11 Delay or Omission Not Waiver............................................................. 47
5.12 Control by Holders....................................................................... 47
5.13 Waiver of Past Defaults.................................................................. 47
5.14 Undertaking for Costs.................................................................... 48
5.15 Waiver of Stay or Extension Laws......................................................... 48
ARTICLE SIX The Trustee.................................................................................... 48
6.1 Certain Duties and Responsibilities...................................................... 48
6.2 Notice of Defaults....................................................................... 49
6.3 Certain Rights of Trustee................................................................ 50
6.4 Not Responsible for Recitals or Issuance of Securities................................... 51
6.5 May Hold Securities...................................................................... 51
6.6 Money Held in Trust...................................................................... 51
6.7 Compensation and Reimbursement........................................................... 51
6.8 Disqualification; Conflicting Interest................................................... 52
6.9 Corporate Trustee Required; Eligibility.................................................. 52
6.10 Resignation and Removal; Appointment of Successor........................................ 52
6.11 Acceptance of Appointment by Successor................................................... 54
6.12 Merger, Conversion, Consolidation or Succession to Business.............................. 54
6.13 Preferential Collection of Claims Against Company........................................ 54
6.14 Appointment of Authenticating Agent...................................................... 58
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company............................................ 59
7.1 Company to Furnish Trustee Names and Addresses of Holders................................ 59
7.2 Preservation of Information; Communications to Holders................................... 59
7.3 Reports by Trustee....................................................................... 61
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease......................................... 62
8.1 Company May Consolidate, Etc., Only on Certain Terms..................................... 62
8.2 Successor Substituted for Company........................................................ 63
ARTICLE NINE Supplemental Indentures....................................................................... 63
9.1 Supplemental Indentures Without Consent of Holders....................................... 63
9.2 Supplemental Indentures with Consent of Holders.......................................... 64
9.3 Execution of Supplemental Indentures..................................................... 65
9.4 Effect of Supplemental Indentures........................................................ 65
9.5 Conformity with Trust Indenture Act...................................................... 65
9.6 Reference in Securities to Supplemental Indentures....................................... 65
ARTICLE TEN Covenants...................................................................................... 65
10.1 Payment of Principal, Premium and Interest............................................... 65
10.2 Maintenance of Office or Agency.......................................................... 65
10.3 Money for Security Payments to be Held in Trust.......................................... 66
10.4 Existence; Line of Business.............................................................. 67
10.5 Maintenance of Properties; Insurance..................................................... 67
10.6 Payment of Taxes and Other Claims........................................................ 68
10.7 Reports.................................................................................. 68
10.8 Compliance Certificate................................................................... 69
10.9 Stay, Extension and Usury Laws........................................................... 70
10.10 Limitation on Restricted Payments........................................................ 70
10.11 Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries............. 72
10.12 Limitation on Incurrence of Indebtedness................................................. 73
10.13 Limitation on Asset Sales................................................................ 75
10.14 Limitation on Transactions with Affiliates............................................... 76
10.15 Limitation on Liens...................................................................... 77
10.16 Offer to Repurchase Upon Change of Control............................................... 77
10.17 Payments for Consent..................................................................... 79
10.18 Limitation on Sale/Leaseback Transactions................................................ 79
10.19 Limitation on Issuance of Equity Interests of Restricted Subsidiaries.................... 79
10.20 Additional Guarantees.................................................................... 80
10.21 Perfection of Security Interests......................................................... 80
10.22 Events of Loss to Collateral............................................................. 80
ARTICLE ELEVEN Conversion of Securities.................................................................... 81
11.1 Conversion Privilege and Conversion Price................................................ 81
11.2 Exercise of Conversion Privilege......................................................... 81
11.3 Fractional Shares........................................................................ 82
11.4 Adjustment of Conversion Price........................................................... 82
11.5 Notice of Adjustments of Conversion Price................................................ 87
11.6 Notice of Certain Corporate Actions...................................................... 88
11.7 Reservation and Authorization of Common Stock............................................ 89
11.8 Taxes on Conversion...................................................................... 89
11.9 Cancellation of Converted Securities..................................................... 90
11.10 Changes in Common Stock.................................................................. 90
11.11 No Voting or Dividend Rights............................................................. 91
ARTICLE TWELVE SECURITY ARRANGEMENTS....................................................................... 91
12.1 Collateral and Security Documents........................................................ 91
12.2 Release of Collateral.................................................................... 93
12.3 Opinions as to Recording................................................................. 93
12.4 Further Assurances and Security.......................................................... 94
12.5 Authorization of Actions to be Taken by Collateral Agent Under the Security Documents.... 94
12.6 Authorization of Receipt of Funds by the Trustee Under the Security Documents............ 95
ARTICLE THIRTEEN GUARANTEES................................................................................ 95
13.1 Guarantee................................................................................ 95
13.2 Limitation on Guarantor Liability........................................................ 97
13.3 Successors and Assigns................................................................... 98
13.4 No Waiver................................................................................ 98
13.5 Execution and Delivery of Guarantee...................................................... 98
13.6 Guarantors May Consolidate, Etc., on Certain Terms....................................... 98
13.7 Releases Following Sale of Assets or Equity Interests.................................... 99
INDENTURE dated as of _________ __, 2004 among Texas Petrochemicals LP,
a limited partnership duly organized and existing under the laws of the State of
Texas (herein called the "COMPANY"), ______________, a Delaware corporation and
the indirect owner of all of the partnership interests of the Company (herein
called the "PARENT"), the additional Guarantors other than the Parent and [Name
of Trustee], a _________________ duly organized and existing under the laws of
______________, as Trustee (herein called the "TRUSTEE").
RECITALS
The Company has duly authorized the creation of an issue of its 7-1/4%
Senior Secured Convertible Notes Due 2009 (herein called the "SECURITIES") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company and the Guarantors have duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company and the Guarantors, in accordance with their and
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, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
(d) all references in this instrument to designated Articles,
Sections and other subdivisions are to the designated Articles, Sections and
other subdivisions of this Indenture; and
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(e) 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 that
Article.
"ACT", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"ADJUSTED NET ASSETS" of a Guarantor at any date means the amount by
which the fair value of the assets and property of such Guarantor exceeds the
total amount of liabilities, including, without limitation, contingent
liabilities (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date), but excluding liabilities under any
Guarantee, of such Guarantor at such date.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AFFILIATE TRANSACTION" has the meaning set forth in Section 10.14.
"APPLICANTS" has the meaning set forth in Section 7.2(ii).
"APPLICABLE VALUE PERCENTAGE" means, with respect to any Parent Offer
designated as an "Excluded Parent Offer" pursuant to this definition, the
percentage determined by dividing (A) the difference between (i) the fair market
value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and evidenced by a Board Resolution filed with
the Trustee) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender offer) of
Purchased Shares (as defined in Section 11.4(e)), and (ii) the product of the
Current Market Price per share on the date of the Expiration Time and the number
of Purchased Shares, by (B) the product of (i) the Current Market Price per
share of the Common Stock on the date of the Expiration Time and (ii) the number
of shares of Common Stock outstanding (including any tendered shares) on the
date of the Expiration Time.
"ASSET SALE" means (i) the sale, lease, conveyance or other disposition
of any assets or rights (including, without limitation, by way of a
Sale/Leaseback Transaction) other than sales, conveyances or transfers of
inventory in the ordinary course of business consistent with past practices and
(ii) the issue or sale by the Company or any of its Restricted Subsidiaries of
Equity Interests of any of the Company's Restricted Subsidiaries.
Notwithstanding the foregoing, the following items shall not be deemed to be
Asset Sales: (i) a transfer of assets by the Company to a Restricted Subsidiary
or by a Restricted Subsidiary to the Company or to another Restricted
Subsidiary; (ii) an issuance or sale of Equity Interests by a Restricted
Subsidiary to the Company or to another Restricted Subsidiary; (iii) a sale of
property or equipment that has become worn out, obsolete or otherwise unsuitable
for its purpose; (iv) transactions consummated in accordance with Section 10.13;
(v) transactions consummated in compliance with Section 8.1 or 10.16 and (vi)
the foreclosure of any Lien permitted by Section 10.15.
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"ASSET SALE PROCEEDS" means the aggregate amount of all Net Proceeds
realized by the Company and its Subsidiaries in connection with any Asset Sale.
"ATTRIBUTABLE INDEBTEDNESS" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Securities, compounded semi-annually) of the total
obligations of the lessee for rental payments during the remaining term of the
lease included in such Sale/Leaseback Transaction (including any period for
which such lease has been extended).
"AUTHENTICATING AGENT" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate the Securities.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal,
state or foreign law for the relief of debtors.
"BOARD OF DIRECTORS" means any of (a) the board of directors of the
Parent, (b) any duly authorized committee of that board or (c) any officer of
the Parent duly authorized by the board of directors of the Parent to take a
specified action.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Parent 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. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution, such
action may be taken by the Board of Directors.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"CAPITAL LEASE OBLIGATION" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
GAAP. The Stated Maturity of such obligation shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date
upon which such lease may be terminated by the lessee without payment of a
penalty.
"CASH EQUIVALENTS" means (i) United States dollars, (ii) securities
issued or directly and fully guaranteed or insured by the United States
government or any agency or instrumentality thereof (provided that the full
faith and credit of the United States is pledged in support thereof) having
maturities of not more than six months from the date of acquisition, (iii)
certificates of deposit and Eurodollar time deposits with maturities of six
months or less from the date of acquisition, bankers' acceptances with
maturities not exceeding six months and overnight bank deposits, in each case
with any domestic commercial bank having capital and surplus in excess of
$500,000,000 and a Xxxxxxxx Bank Watch Rating of "B" or better, (iv) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clauses (ii) and (iii) above entered into with any
financial institution meeting the qualifications specified in clause (iii)
above, (v) commercial paper having the highest rating
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obtainable from Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Group and in each case maturing within six months after the date of acquisition
and (vi) money market funds at least 95% of the assets of which constitute Cash
Equivalents of the kinds described in clauses (i) - (v) of this definition.
"CASUALTY" means, with respect to any Collateral, any loss of, damage
to or destruction of all or any material part of such Collateral.
"CHANGE OF CONTROL" is defined to include any of: (i) any sale, lease,
exchange or transfer (in one transaction or series of related transactions) of
all or substantially all of the assets of the Parent and its Subsidiaries taken
as a whole to any "person" or "group" within the meaning of Section 13(d) of the
Exchange Act; (ii) the approval by the holders of the Equity Interests of the
Parent of any plan or proposal for the liquidation or dissolution of the Parent
(whether or not otherwise in compliance with the provisions of this Indenture);
(iii) if any "person" or "group" within the meaning of Section 13(d) of the
Exchange Act (other than any entity formed solely for the purpose of owning 100%
of the Equity Interests of the Parent) shall become the owner, directly or
indirectly of shares of Equity Interests representing more than 50% of the
aggregate voting power represented by the issued and outstanding Equity
Interests of the Parent; (iv) Continuing Directors cease to constitute at least
a majority of the Board of Directors; (v) any event, the occurrence of which
constitutes a change of control for the purposes of any Indebtedness of the
Company or any of the Guarantors; or (vi) the Parent shall no longer
beneficially own 100% of the Equity Interests of the Company.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section
10.16(a).
"CHANGE OF CONTROL PURCHASE PRICE" has the meaning specified in Section
10.16(a).
"CHANGE OF CONTROL PAYMENT DATE" has the meaning specified in Section
10.16(a).
"COLLATERAL" means the collective reference to all assets, whether now
owned or hereafter acquired, upon which a Lien is created or granted from time
to time pursuant to any Security Document.
"COLLATERAL ACCOUNT" means one or more collateral accounts established
pursuant to this Indenture.
"COLLATERAL AGENT" means the Trustee, in its capacity as collateral
agent under the Security Documents, until a successor collateral agent shall
have become such pursuant to the Security Documents, and thereafter "Collateral
Agent" shall mean such successor collateral agent.
"COMMISSION" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, 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 STOCK" means any Equity Interests of any class or series of the
Parent (including, on the Original Issue Date, the Common Stock, par value $.01
per share, of the
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Parent) which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Parent and which is not subject to redemption by the Parent. However,
subject to the provisions of Section 11.10, shares issuable on conversion of
Securities shall include only shares of the class of Equity Interests of the
Parent designated as Common Stock, par value $.0l per share, of the Parent on
the Original Issue Date or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Parent and which are
not subject to redemption by the Parent; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable shall be substantially in the proportion which the total number
of shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"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" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by the Officers of the Parent as general
partner of the Company, and delivered to the Trustee.
"CONDEMNATION" means any taking of the Collateral or any material part
thereof, in or by condemnation, expropriation or similar proceeding, eminent
domain proceedings, seizure or forfeiture, pursuant to any law, general or
special, or by reason of the temporary requisition of the use or occupancy of
all of the Collateral, or any material part thereof, by any authority.
"CONSOLIDATED EBITDA" means, with respect to any Person for any period,
the sum of Consolidated Net Income of such Person, plus the following to the
extent deducted in calculating such Consolidated Net Income, in each case for
such period: (i) all income tax expense of such Person and its consolidated
Restricted Subsidiaries; (ii) Consolidated Interest Expense; and (iii)
depreciation and amortization expense of such Person and its consolidated
Restricted Subsidiaries (excluding amortization expense attributable to a
prepaid operating activity item that was paid in cash in a prior period).
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and non-cash charges of, a
Restricted Subsidiary shall be added to Consolidated Net Income to compute
Consolidated EBITDA only to the extent (and in the same proportion, including by
reason of minority interests) that the Net Income of such Restricted Subsidiary
was included in calculating Consolidated Net Income and only if a corresponding
amount would be permitted at the date of determination to be dividended to such
Person by such Restricted Subsidiary without prior approval (that has not been
obtained), pursuant to the terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental regulations
applicable to such Restricted Subsidiary or its stockholders.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to any Person for
any period, the total interest expense of such Person and its consolidated
Restricted Subsidiaries, plus, to the extent not included in such total interest
expense, and to the extent Incurred by such Person or its
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Restricted Subsidiaries, without duplication: (i) interest expense attributable
to capital leases and the interest expense attributable to leases constituting
part of a Sale/Leaseback Transaction; (ii) amortization of debt discount and
debt issuance cost; (iii) capitalized interest; (iv) non-cash interest expense;
(v) commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing; (vi) net payments pursuant
to Hedging Obligations; (vii) interest Incurred in connection with Investments
in discontinued operations; (viii) interest accruing on any Indebtedness of any
other Person to the extent such Indebtedness is Guaranteed by (or secured by the
assets of) such Person or any of its Restricted Subsidiaries; and (ix) the cash
contributions to any employee stock ownership plan or similar trust to the
extent such contributions are used by such plan or trust to pay interest or fees
to any Person (other than such Person) in connection with Indebtedness Incurred
by such plan or trust.
"CONSOLIDATED LEVERAGE RATIO" means, with respect to any Person, the
ratio of (a) the aggregate outstanding consolidated Indebtedness of such Person
and its consolidated Subsidiaries as of the date of the transaction giving rise
to the need to calculate such Leverage Ratio on a consolidated basis in
accordance with GAAP to (b) the Consolidated EBITDA of such Person during the
last four fiscal quarters ending on or prior to the transaction date for which
financial statements are available.
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that (i) the Net Income (but not loss) of any Person that is
not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a wholly-owned Restricted
Subsidiary thereof that is a Guarantor; (ii) the Net Income of any Restricted
Subsidiary shall be excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted Subsidiary of that Net
Income is not at the date of determination permitted without any prior
governmental approval (that has not been obtained) or, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Restricted Subsidiary or its stockholders; (iii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition shall be excluded; (iv) the cumulative effect of a change in
accounting principles shall be excluded; (v) the Net Income of any Unrestricted
Subsidiary shall be excluded, whether or not distributed to the Company or one
of its Restricted Subsidiaries; (vi) any gain or loss realized on the
termination of any employee pension benefit plan shall be excluded; and (vii)
the Net Income of any Restricted Subsidiary shall be calculated after deducting
preferred stock dividends payable by such Restricted Subsidiary to Persons other
than the Company and its other Restricted Subsidiaries.
"CONSTITUENT PERSON" has the meaning set forth in Section 11.10.
"CONTINUING DIRECTOR" means a director who either was a member of the
Board of Directors on the Original Issue Date or who becomes a member of the
Board of Directors subsequent to that date and whose appointment, election or
nomination for election by the Parent's stockholders is duly approved by a
majority of the Continuing Directors on the Board of Directors at the time of
such approval, either by a specific vote or by approval or the proxy
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statement issued by Parent on behalf of the Board of Directors in which such
individual is named as nominee for director.
"CONVERSION PRICE" means the conversion price per share of Common
Stock, initially set at $9.340033 subject to adjustment as provided in Section
11.4.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee in
_____________, at which at any particular time its corporate trust business
shall be administered.
"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
"CURRENT MARKET PRICE" means on any date:
(a) if the reference is to the per share price of Common Stock on
any date herein specified and if on such date the Common Stock is listed or
admitted to trading on any national securities exchange or quoted on the
National Association of Securities Dealers, Inc. National Market System or
otherwise traded in the over-the-counter market in the United States:
(i) for the purpose of any computation under this
Indenture (except under Section 11.4(e) in respect of a Parent Offer or
under Section 11.3), the average of the Quoted Prices for the five
consecutive Trading Days selected by the Parent commencing not more
than 20 Trading Days before, and ending not later than, the earlier of
(x) the date in question and (y) in the case of any computation under
Section 11.4(d) or 11.4(f), the day before the "ex" date for the
issuance or distribution requiring such computation; provided, however,
that if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires (or for any
distribution which, but for the Company giving written notice to the
Trustee that the Parent intends to treat such distribution as a
Receivable Dividend or Received Dividend hereunder, would have
required) an adjustment to the Conversion Price pursuant to Sections
11.4(a), 11.4(b), 11.4(d), 11.4(e) or 11.4(f) occurs on or after the
20th Trading Day prior to the day in question and prior to the "ex"
date for the issuance or distribution requiring such computation, the
Quoted Price for each Trading Day prior to the "ex" date for such other
event shall be adjusted by multiplying such Quoted Price by the same
fraction by which the Conversion Price is so required (or would have
been required) to be adjusted pursuant to Sections 11.4(a), 11.4(b),
11.4(d), 11.4(e) or 11.4(f), as applicable, as a result of such other
event; or
(ii) for the purpose of any computation under Section
11.4(e), the average of the Quoted Prices for the five consecutive
Trading Days selected by the Parent commencing on or after the latest
(the "COMMENCEMENT DATE") of (i) the date 20 Trading Days before the
date in question, (ii) the date of commencement of the tender offer
requiring such computation, and (iii) the date of the last amendment,
if any, of such tender offer involving a change in the maximum number
of shares for which tenders are sought or a change in the consideration
offered, and ending not later than the date of the Expiration Time (as
defined in Section 11.4(e)) of such tender offer; provided, however,
that if the "ex" date for any event (other than the tender offer
requiring such computation)
7
that requires (or for any distribution for which, but for the Company
giving written notice to the Trustee that the Parent intends to treat
such distribution as a Receivable Dividend or Received Dividend
hereunder, would have required) an adjustment to the Conversion Price
pursuant to Sections 11.4(a), 11.4(b), 11.4(d), 11.4(e) or 11.4(f)
occurs on or after the Commencement Date and prior to the Expiration
Time for the tender offer requiring such computation, the Quoted Price
for each Trading Day prior to the "ex" date for such other event shall
be adjusted by multiplying such Quoted Price by the same fraction by
which the Conversion Price is so required (or would have been required)
to be adjusted pursuant to such Sections 11.4(a), 11.4(b), 11.4(d),
11.4(e) or 11.4(f), as applicable, as a result of such other event; or
(iii) for the purposes of any computation under Section
11.3, the Quoted Price for such date or, if such date is not a Trading
Day, for the next preceding Trading Day; or
(b) if the reference is to the per share price of Common Stock on
any date herein specified and if on such date the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on the
National Association of Securities Dealers, Inc. National Market System or
otherwise traded in the over-the-counter market in the United States, the amount
which a willing buyer would pay a willing seller in an arm's length transaction
on such date (neither being under any compulsion to buy or sell) for one share
of the Common Stock as determined as of such date (x) for the purposes of any
computation under this Indenture (except under Section 11.3), by an Independent
Financial Expert as set forth in value report thereof using one or more
valuation methods that such Independent Financial Expert, in its best
professional judgment, determines to be most appropriate or (y) for the purposes
of any computation under Section 11.3, by the Treasurer or Chief Financial
Officer of the Parent in good faith, whose determination shall be conclusive and
evidenced by a certificate of such officer delivered to the Trustee.
"DEFAULT" means any event that is, or after notice or the passage of
time or both would be, an Event of Default, unless waived.
"DEFAULTED INTEREST" has the meaning specified in Section 3.7.
"DEPOSITORY" means, with respect to any Securities issuable or issued
in whole or in part in the form of one or more Global Securities, the clearing
agency registered under the Exchange Act and any other applicable statute or
regulation specified for that purpose, with respect to such Securities. If at
any time there is more than one such Person, "Depository" shall mean, with
respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
"DISQUALIFIED EQUITY INTERESTS" means any Equity Interests that, by
their terms (or by the terms of any security into which they are convertible, or
for which they are exchangeable, at the option of the holder thereof), or upon
the happening of any event, mature or are mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or are redeemable at the option of the
Holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Securities mature.
8
"EQUITY INTEREST" means, (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of common stock and preferred stock of such Person and all options,
warrants or other rights to purchase or acquire any of the foregoing; and (ii)
with respect to any Person that is not a corporation, any and all partnership,
membership or other equity interests of such Person, and all options, warrants
or other rights to purchase or acquire any of the foregoing.
"EVENT OF DEFAULT" has the meaning specified in Section 5.1.
"EVENT OF LOSS" means, with respect to any Collateral, any (i) Casualty
with respect to such Collateral, (ii) Condemnation of such Collateral, or (iii)
settlement in lieu of clause (ii) above.
"`EX' DATE" means:
(i) when used with respect to any issuance or
distribution, the first date on which the Common Stock trades regular
way on the relevant exchange or in the relevant market from which the
Quoted Price was obtained without the right to receive such issuance or
distribution;
(ii) when used with respect to any subdivision or
combination of shares of Common Stock, the first date on which the
Common Stock trades regular way on the relevant exchange or in the
relevant market after the time at which such subdivision or combination
becomes effective; or
(iii) when used with respect to any tender offer, the first
date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market after the Expiration Time of such
tender offer.
"EXCESS LOSS PROCEEDS" has the meaning specified in Section 10.22.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCLUDED DIVIDEND" means any Property Dividend (other than any
Received Dividend or Receivable Dividend or any dividend or distribution of
rights or warrants referred to in Section 11.4(f)) that is paid or made in cash
out of earnings or earned surplus, determined in accordance with generally
accepted accounting principles).
"EXCLUDED PARENT OFFER" means any Parent Offer that is designated by
the Parent as such by written notice to the Trustee if (but only if) the
Applicable Value Percentage for such Parent Offer, when added to the Applicable
Value Percentages for all other Excluded Parent Offers expiring, and for all
Excluded Dividends paid by the Parent, after the date 12 months prior to the
Expiration Time for such Parent Offer and on or prior to such Expiration Time,
does not exceed 12.5%.
9
"EXISTING INDEBTEDNESS" means Indebtedness of the Company and the
Guarantors in existence on the Original Issue Date other than the Revolving
Credit Facility until such amounts are repaid.
"EXPIRATION TIME" has the meaning set forth in Section 11.4(e).
"FINANCIAL EXPERT" means any broker or dealer registered as such under
the Exchange Act that conducts an investment banking business of nationally
recognized standing.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"GLOBAL SECURITY" means a Security bearing the legend required by
Section 3.11 evidencing all or part of the Securities, issued to the Depository
or its nominee and registered in the name of such Depository or nominee.
"GUARANTEE" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing, or having the economic effect of
guaranteeing, any Indebtedness of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, and including, without limitation,
any obligation of such Person: (i) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or to purchase (or to
advance or supply funds for the purchase of) any security for the payment of
such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the Primary Obligor so as to
enable the Primary Obligor to pay such Indebtedness (and "GUARANTEED,"
"GUARANTEEING" and "GUARANTOR" shall have meanings correlative to the
foregoing); provided, however, that the Guarantee by any Person shall not
include endorsements by such Person for collection or deposit, in either case,
in the ordinary course of business.
"GUARANTORS" means the Parent and any Subsidiary of Parent that
executes a Guarantee in accordance with the provisions of this Indenture, and
their respective successors and assigns.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements, (ii) other agreements
or arrangements designed to protect such Person against fluctuations in interest
rates or foreign currency changes, and (iii) agreements or arrangements,
including forward contracts, designed to protect such Person against
fluctuations in the price of natural gas, crude oil or other commodities used in
the business of such Person and its Restricted Subsidiaries; provided such
agreements or arrangements are entered into in the ordinary course of business
consistent with past practices and not for speculation.
"HOLDER" means a Person in whose name a Security is registered in the
Security Register.
10
"INCUR" means, with respect to any Indebtedness or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Indebtedness or
other obligation including by acquisition of Restricted Subsidiaries or the
recording, as required pursuant to GAAP or otherwise, of any such Indebtedness
or other obligation on the balance sheet of such Person (and "INCURRENCE",
"INCURRED", "INCURABLE" and "INCURRING" shall have meanings correlative to the
forgoing); provided, however, that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Indebtedness shall
not be deemed an Incurrence of such Indebtedness.
"INDEBTEDNESS" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person, (i) the
principal amount of every obligation of such Person for money borrowed; (ii) the
principal amount of every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including the principal amount
of such obligations Incurred in connection with the acquisition of property,
assets or businesses; (iii) reimbursement obligations of such Person with
respect to letters of credit, bankers acceptances or similar facilities issued
for the account of such Person; (iv) the principal amount of obligations of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable incurred in the ordinary course of
business and payable in accordance with industry practices, or other accrued
liabilities arising in the ordinary course of business); (v) Capital Lease
Obligations of such Person; (vi) Attributable Indebtedness; (vii) any
Disqualified Equity Interests of the Company or any preferred stock of any
Restricted Subsidiary of the Company not held by the Company or a Restricted
Subsidiary; (viii) obligations of the type referred to in clauses (i) through
(viii) of another Person and all dividends of another Person the payment of
which, in either case, such Person has guaranteed or is responsible or liable
for, directly or indirectly, as obligor, guarantor or otherwise; and (ix) any
and all deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (i) through (viii) above. The "amount" or "principal
amount" of Indebtedness at any time of determination as used herein will be (i)
the maximum principal amount thereof in the case of any contingent Indebtedness,
(ii) the accreted value thereof, in the case of any Indebtedness issued at a
price that is less than the principal amount at maturity thereof, and (iii) the
principal amount thereof, together with any interest thereon that is more than
30 days past due, in the case of any Indebtedness. In no event shall
"Indebtedness" include (i) any trade account payable or accrued expenses arising
in the ordinary course of business which are not more than 180 days past due or
which are being contested in good faith and by appropriate proceedings; (ii)
obligations of any person (A) arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
drawn against insufficient funds in the ordinary course of business and (B)
resulting from the endorsement of negotiable instruments for collection in the
ordinary course of business or (iii) obligations under performance bonds,
performance guarantees, surety bonds and appeal bonds, letter of credit or
similar obligations, Incurred in the ordinary course of business, provided, it
does not support Indebtedness for money borrowed.
"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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act, that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
11
"INDEPENDENT FINANCIAL EXPERT" means any Financial Expert selected by
the Parent that either (i) is reasonably acceptable to the Holders of Securities
evidencing a majority of the Outstanding Securities or (ii) is a firm (x) which
does not (and whose directors, officers, employees and affiliates, to the
knowledge of the Parent, do not) have a material direct or indirect financial
interest in the Parent or any of its Affiliates (other than by virtue of
compensation paid for advice or opinions referred to in the exception to clause
(z)), as determined by the Board of Directors in its reasonable good faith
judgment, (y) which has not been, within the last two years, and, at the time it
is called upon to give independent financial advice to the Parent or any of its
Affiliates, is not (and none of whose directors, officers, employees or
affiliates, to the knowledge of the Parent, is) a promoter, director or officer
of the Parent or any of its Affiliates or an underwriter with respect to any of
the securities of the Parent or any of its Affiliates and (z) which does not
provide any advice or opinions to the Parent or Affiliates except as an
independent financial expert in connection with this Indenture.
"INTERCREDITOR AGREEMENT" means the agreement among the Company,
______________________ and the Trustee in substantially the form attached hereto
as Exhibit A.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities.
"INVESTMENTS" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including Guarantees of Indebtedness or other obligations),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness or Equity
Interests, together with all items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Subsidiary of the Company, the Company shall be deemed to have made
an Investment on the date of any such sale or disposition equal to the fair
market value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in Section 10.13 hereof.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
12
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Restricted
Subsidiaries or the extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries and (ii) any extraordinary gain (but not loss),
together with any related provision for taxes on such extraordinary gain (but
not loss).
"NET LOSS PROCEEDS" means, with respect to any Event of Loss, the
proceeds in the form of (a) cash or Cash Equivalents and (b) insurance proceeds,
condemnation awards or damages awarded by any judgment, in each case received by
the Company from such Event of Loss net of: (i) reasonable out-of-pocket
expenses and fees relating to such Event of Loss (including, without limitation,
legal, accounting and appraisal and insurance adjuster fees); (ii) all federal,
state, provincial, foreign and local taxes required to be accrued as a liability
under GAAP as a consequence of such Event of Loss; (iii) repayment of
Indebtedness (other than indebtedness evidenced by the Securities) that is
secured by the property or assets that are the subject of such Event of Loss;
and (iv) appropriate amounts to be provided by the Company as a reserve, in
accordance with GAAP, against any liabilities associated with such Event of Loss
and retained by the Company after such Event of Loss, including, without
limitation, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Event of Loss.
"NET PROCEEDS" means the aggregate proceeds in the form of cash or Cash
Equivalents received by the Company or any of its Restricted Subsidiaries (i)
with respect to any Asset Sale (including, without limitation, any cash received
upon the sale or other disposition of any non-cash consideration received in any
Asset Sale), net of (a) the direct costs relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees and expenses,
and sales commissions), (b) any relocation or severance expenses incurred as a
result thereof, (c) taxes paid or payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing), (d) any
amounts required to be applied to the permanent repayment of Indebtedness
secured by a Lien on the asset or assets that were the subject of such Asset
Sale and (e) any reserve for adjustment in respect of the sale price of such
asset or assets established in accordance with GAAP; provided, however, that any
reduction in such reserve within twelve months following the consummation of
such Asset Sale will be treated for all purposes of this Indenture and the
Securities as a new Asset Sale at the time of such reduction with Net Proceeds
equal to the amount of such reduction; and (ii) with respect to the issuance or
sale of Equity Interests, or options, warrants or rights to purchase Equity
Interests, or debt securities or Disqualified Stock that has been converted into
or exchanged for Equity Interests, the proceeds of such issuance or sale in the
form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations, net of attorney's fees, accountant's fees and brokerage,
consultation, underwriting and other fees and expenses actually incurred in
connection with such issuance or sale, conversion or exchange and net of any
consolidated interest expense attributable to any debt securities paid to the
holders thereof prior to the conversion or exchange and net of taxes paid or
payable as a result thereof.
13
"NON-ELECTING SHARE" has the meaning set forth in Section 11.10.
"NON-RECOURSE DEBT" means Indebtedness: (i) as to which neither the
Company nor any of its Restricted Subsidiaries (a) provides credit support of
any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable (as a guarantor
or otherwise) or (c) constitutes the lender; (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness (other than
the Securities) of the Company or any of its Restricted Subsidiaries to declare
a default on such other Indebtedness or cause the payment thereof to be
accelerated or payable prior to its stated maturity; and (iii) as to which
lenders have been notified in writing that they will not have any recourse to
the stock or assets of the Company or any of its Restricted Subsidiaries.
"NON-SURVIVING TRANSACTION" has the meaning set forth in Section 11.10.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICER AMOUNT" has the meaning set forth in Section 10.13.
"OFFICER" means the Chief Executive Officer, the President, any Vice
President, the Chief Financial Officer, the Treasurer or the Secretary of a
Person.
"OFFICERS' CERTIFICATE" means a certificate signed by an Officer and
delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for or an employee of the Parent, and who shall be reasonably acceptable
to the Trustee.
"ORIGINAL ISSUE DATE" means _______, 2004, the date on which Securities
are originally issued under this Indenture.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment, redemption or
repurchase money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in trust
or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
14
(iii) Securities which have been paid pursuant to Section
3.6 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, 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, 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.
"PARENT" means the Person named as the "Parent" 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 "Parent" shall mean
such successor Person.
"PARENT OFFER" means any tender offer (including any exchange offer) as
amended from time to time made by the Parent or any of its Subsidiaries for the
purchase (including the acquisition pursuant to an exchange offer) of all or any
portion of the outstanding shares of Common Stock.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"PERMITTED DEBT" has the meaning specified in Section 10.12.
"PERMITTED INVESTMENTS" means (i) any Investment in the Company or in a
Restricted Subsidiary of the Company that is a Guarantor; (ii) any Investment in
Cash Equivalents; (iii) any Investment by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such Investment (a)
such Person becomes a Restricted Subsidiary of the Company and a Guarantor or
(b) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is liquidated into,
the Company or a Restricted Subsidiary of the Company that is a Guarantor; (iv)
any Investment made as a result of the receipt of non-cash consideration from an
Asset Sale that was made pursuant to and in compliance with Section 10.13
hereof; (v) any acquisition of assets solely in exchange for the issuance of
Equity Interests (other than Disqualified Equity Interests) of the Company; (vi)
Hedging Obligations; (vii) other Investments in any Person having an aggregate
fair market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (vii) that are at the time
outstanding, not to exceed $2,500,000; (viii) Guarantees issued in accordance
with Section 10.20 of this Indenture; (ix) Investments in prepaid expenses,
15
negotiable instruments held for collection and lease, utility and worker's
compensation, performance and other similar deposits and advances or expenses
that are expected at the time of payment to be treated as prepaid expenses in
accordance with GAAP; (x) stock, obligations or securities received in
satisfaction of judgments; (xi) Investments existing on the Original Issue Date
other than with officers, directors and employees or any of their respective
Affiliates; (xii) advances to officers, directors and employees in the ordinary
course of business provided that such advances have been approved by a majority
of the disinterested members of the Board of Directors; and (xiii) accounts
receivable in the ordinary course of business (and Investments obtained in
exchange or settlement of accounts receivable for which the Company has
determined that collection is not likely or as a result of bankruptcy or
insolvency proceedings or upon the foreclosure, perfection or enforcement of any
Lien in favor of the Company or any Restricted Subsidiary, in each case as to
debt owing to the Company or any Restricted Subsidiary that arose in the
ordinary course of business of the Company or such Restricted Subsidiary).
"PERMITTED LIENS" means (i) Liens in favor of the Company; (ii) Liens
on property of a Person existing at the time such Person is merged into or
consolidated with the Company or any Restricted Subsidiary of the Company;
provided that such Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other than those of the
Person merged into or consolidated with the Company; (iii) Liens on property or
assets existing at the time of acquisition thereof or the acquisition of a
Person owning such property or assets by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in existence prior to
the contemplation of such acquisition and do not extend to any assets other than
the acquired property and accessions and additions thereto and proceeds thereof;
(iv) Liens to secure the performance of statutory obligations, surety or appeal
bonds, performance bond or other obligations of a like nature Incurred in the
ordinary course of business; (v) Liens to secure Capital Lease Obligations and
mortgage financing or purchase money obligations of the type (but without
reference to any restrictions on amount) that are permitted to be Incurred
pursuant to the terms of this Indenture covering only the assets acquired with
such Indebtedness and proceeds thereof, provided, however, that (a) the
principal amount of any Indebtedness secured by such a Lien does not exceed 100%
of such purchase price or cost, (b) such a Lien is created within 180 days of
the construction, acquisition or improvement of such property and does not
extend to or cover any other property other than such item of property and any
improvements or accessions thereto and proceeds thereof and (c) the Incurrence
of such Indebtedness is otherwise permitted by this Indenture; (vii) Liens for
taxes, assessments or governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (viii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been made
in respect thereof; (ix) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering in
any material respect with the ordinary conduct of the business of the Company or
any of its Restricted Subsidiaries; (x) Liens existing on the Original Issue
Date to secure Existing Indebtedness; (xi) Liens to secure Indebtedness Incurred
to extend, renew, refinance or refund (or successive extensions, renewals,
refinancings or refundings), in whole or in part, Indebtedness secured by any
Lien referred to in
16
the foregoing clauses (ii), (iii), (v) and (x) so long as such Lien does not
extend to any other property and the principal amount of Indebtedness so secured
is not increased; (xii) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $5,000,000 at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade credit in the ordinary course of business) and (b)
do not in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Company or
such Restricted Subsidiary; (xiii) Liens on assets or Unrestricted Subsidiaries
that secure Non-Recourse Debt of Unrestricted Subsidiaries; (xiv) Liens
contemplated hereunder and under the Security Documents that secure this
Indenture, the Securities or the Guarantees, and (xv) Liens existing on the date
hereof pursuant to the Revolving Credit Facility.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the principal amount of (or accreted value, if applicable), plus
accrued interest on, the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus the amount of any prepayment premium
necessary to accomplish such refinance and reasonable expenses Incurred in
connection therewith); (ii) such Permitted Refinancing Indebtedness has a final
maturity date equal to or later than the final maturity date of, and has a
Weighted Average Life to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; (iii) if the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded is subordinated in right of
payment to the Securities, such Permitted Refinancing Indebtedness is
subordinated in right of payment to the Securities on terms at least as
favorable to the Holders of Securities as those contained in the documentation
governing the Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and (iv) such Indebtedness is Incurred either by the
Company or by the Restricted Subsidiary who is the obligor on the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof or other entity.
"PLACE OF PAYMENT" means the Borough of Manhattan, The City of New
York, New York.
"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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
17
"PROPERTY DIVIDEND" means any payment by the Parent to all holders of
its Common Stock of any dividend, or any other distribution by the Parent to
such holders, of any shares of Equity Interests of the Parent, evidences of
indebtedness of the Parent, cash or other assets (including rights, warrants or
other securities (of the Parent or any other Person)), other than any dividend
or distribution (i) upon a merger or consolidation or sale to which Section
11.10 applies or (ii) of any Common Stock referred to in Section 11.4(b).
"PURCHASED SHARES" has the meaning set forth in Section 11.4(e).
"QUOTED PRICE" means, on any Trading Day, with respect to any security,
the last reported sales price regular way or, in case no such reported sale
takes place on such Trading Day, the average of the reported closing bid and
asked prices regular way, in either case on the New York Stock Exchange or, if
such security is not listed or admitted to trading on such exchange, on the
principal national securities exchange on which such security is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Association of Securities Dealers Automated
Quotations National Market System or, if such security is not listed or admitted
to trading on any national securities exchange or quoted on such National Market
System, the average of the closing bid and asked prices in the over-the-counter
market in the United States as furnished by any New York Stock Exchange member
firm that shall be selected from time to time by the Company for that purpose.
"RECEIVABLE DIVIDEND" means any Property Dividend if (but only if) on a
date at least 30 days prior to the date for the determination of holders
entitled to receive such distribution, the Parent has given notice in accordance
with Section 1.6 to all Holders of Securities and the Trustee, in each case
stating:
(iv) the date for such determination;
(v) the fair market value (determined as specified in
clause (iv) below) of the securities, cash or other assets so to be
distributed applicable to one share of Common Stock;
(vi) the Conversion Price then in effect;
(vii) that the Securities will be convertible at all times
during the period (the "SPECIFIED PERIOD") from the opening of business
on the date such notice is given to the close of business on such date
for determination;
(viii) the number of shares of Common Stock into which
$1,000 principal amount of Securities is then convertible;
(ix) that the Company intends to treat such distribution
as a "Receivable Dividend" hereunder and, therefore, that no adjustment
to the Conversion Price will be made as a result of such distribution;
and
(x) the rights thereafter generally available to a Holder
if such Holder's Securities are not converted during the Specified
Period;
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(xi) the Specified Period is at least 30 days long;
(xii) at any time during the Specified Period that any
Security has been Outstanding, such Security has been convertible; and
(xiii) the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and
evidenced by a Board Resolution filed with the Trustee) of the
securities, cash or other assets so to be distributed applicable to one
share of Common Stock exceeds 150% of the Conversion Price in effect at
any time during the Specified Period.
"RECEIVED DIVIDEND" means any Property Dividend if (but only if):
(i) prior to the date for determination of holders of
shares of Common Stock entitled to receive such distribution the Parent
has delivered a written notice to the Trustee that the Parent intends
to treat such distribution as a "Received Dividend" hereunder; and
(ii) at the same time the Parent makes such distribution
to holders of Common Stock, the Parent distributes, to each Person who
was the Holder of a Security that was Outstanding immediately after the
close of business on such date for determination (whether or not such
Security is Outstanding on the date of such distribution), an amount
equal to the amount of securities, cash or other assets that would have
been receivable upon such distribution by a holder of the number of
shares of Common Stock into which all Securities are convertible if
such Securities had been converted in full immediately prior to such
date for determination, assuming that the Securities were convertible
at the time of such date for determination into the number of shares of
Common Stock into which a Security is convertible, as adjusted from the
Original Issue Date to such date for determination pursuant to Article
Eleven (other than any adjustment in respect of which the deferral
provisions of 11.4(h)(iv) are then applicable).
"REGULAR RECORD DATE" for the interest payable on any Interest Payment
Date means the ____________ or _____________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"REORGANIZATION CASE" means the cases filed on July 20, 2003 by the
Company and certain other debtors pursuant to chapter 11 of the United State
Bankruptcy Code, 11 U.S.C. Section 101 et. seq. in the United States Bankrutpcy
Court for the Southern District of Texas jointly administered under case number
03-40258-H3-11.
"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
19
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"RESTRICTED INVESTMENT" means any Investment other than a Permitted
Investment.
"RESTRICTED PAYMENT" with respect to any Person means (i) the
declaration or payment of any dividends or any other distributions, whether
direct or indirect, of any sort in respect of its Equity Interests (including
any payment in connection with any merger or consolidation involving such
Person) or similar payment to the direct or indirect holders of its Equity
Interests (other than (A) dividends or distributions payable solely in its
Equity Interests (other than Disqualified Equity Interests), (B) dividends or
distributions payable solely to the Company or a Restricted Subsidiary, and (C)
dividends or other distributions made by a Subsidiary to the holders of any
class of its Equity Interests on a pro rata basis); (ii) the purchase,
redemption or other acquisition or retirement for value of any Equity Interests
of the Company held by any Person or of any Equity Interests of a Restricted
Subsidiary held by any Affiliate of the Company that is an entity (other than a
Restricted Subsidiary), including the exercise of any option to exchange any
Equity Interests (other than into Equity Interests of the Company that are not
Disqualified Equity Interests); (iii) the purchase, repurchase, redemption,
defeasance or other acquisition or retirement for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund payment of any
Indebtedness of such Person that is subordinated to the Securities (other than
(A) payments made solely to the Company or a wholly owned Subsidiary of the
Company and (B) the purchase, repurchase or other acquisition of Indebtedness
that is subordinated to the Securities purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of such purchase, repurchase or other
acquisition); or (iv) the making of any Investment (other than a Permitted
Investment) in any Person.
"RESTRICTED SUBSIDIARY" means, with respect to any Person, each
Subsidiary of such Person that is not an Unrestricted Subsidiary.
"REVOLVING CREDIT FACILITY" means, the Credit Agreement, dated _____,
by and among the Company and LaSalle Bank, including any deferrals, renewals,
extension, substitutions, replacements, refinancings or refundings thereof, or
amendments, modifications or supplements thereto and any agreement providing
therefore (excluding any increases in the amount of commitment thereunder),
whether by or with the same or any other lender, creditor or group thereof.
"SALE/LEASEBACK TRANSACTION" means any arrangement relating to property
now owned or hereafter acquired whereby the Company or a Restricted Subsidiary
transfers such property to a Person and the Company or a Restricted Subsidiary
leases it from such Person.
"SECURITIES" has the meaning specified in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"SECURITY AGREEMENTS" means each Security Agreement, dated as of the
Original Issue Date or any subsequent date, as appropriate, by and among the
Company, the Guarantors and the Collateral Agent in substantially the form
attached hereto as Exhibit B.
"SECURITY DOCUMENTS" means the Security Agreements, the Intercreditor
Agreement and any other document or agreement that secures this Indenture, the
Securities or the Guarantees.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 3.5.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"SPECIFIED PERIOD" has the meaning specified in the definition of
"Receivable Dividend" in this Section.
"STATED MATURITY", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"SUBJECT PROPERTY" has the meaning specified in Section 10.22.
"SUBSIDIARY" means, with respect to any Person:
(i) any corporation of which more than 50% of the total
voting power of all classes of the capital stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors is owned by such Person directly or through one or more other
Subsidiaries of such Persons, and
(ii) any entity other than a corporation of which at least
a majority of the capital stock or other equity interest (however
designed) entitled (without regard to the occurrence of any
contingency) or vote in the election of the governing body, partners,
managers or others that will control the management of such entity is
owned by such Person directly or through one or more other Subsidiaries
of such Person.
"SUBSTITUTED PROPERTY" has the meaning set forth in Section 11.10.
"SURVIVING TRANSACTION" has the meaning set forth in Section 11.10.
"TRADING DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"TRANSACTION" has the meaning set forth in Section 11.10.
"TRIGGER EVENT" has the meaning set forth in Section 11.4(f).
21
"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 such successor Trustee.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date of which this instrument was executed, except as provided in Section
9.5; provided, however, that in the event that the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary (or a Subsidiary of such
Subsidiary) that is designated by the Board of Directors as an Unrestricted
Subsidiary pursuant to a Board Resolution, but only to the extent that such
Subsidiary: (i) has no Indebtedness other than Non-Recourse Debt; (ii) is not
party to any agreement, contract, arrangement or understanding with the Company
or any Restricted Subsidiary of the Company unless the terms of any such
agreement, contract, arrangement or understanding are no less favorable to the
Company or such Restricted Subsidiary than those that might be obtained at the
time from Persons who are not Affiliates of the Company; (iii) is a Person with
respect to which neither the Company nor any of its Restricted Subsidiaries has
any direct or indirect obligation (A) to subscribe for additional Equity
Interests or (B) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; (iv) has
not Guaranteed any Indebtedness of the Company or any of its Restricted
Subsidiaries; and (v) has at least one director on its board of directors (or
manager on its board of managers or equivalent governing body) or the general
partner of which has a member on its board of directors (or manager on its board
of managers or equivalent governing body) that is not a director or executive
officer of the Company or any of its Restricted Subsidiaries and has at least
one executive officer that is not a director or executive officer of the Company
or any of its Restricted Subsidiaries. Any such designation by the Board of
Directors shall be evidenced by a Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
compiled with the foregoing conditions and was permitted by Section 10.16
hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be Incurred by a Restricted
Subsidiary of the Company as of such date (and, if such Indebtedness is not
permitted to be Incurred as of such date under Section 10.12 hereof the Company
shall be in default of such covenant).
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (ii) the then outstanding principal
amount of such Indebtedness.
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1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
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
(including any covenants compliance with which constitutes a condition
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 (including any covenants
compliance with which constitutes a condition 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:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
1.3 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 Parent or 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 Parent or the
Company stating that the information with respect to such factual matters is in
the possession of the Parent or 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.
23
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.
1.4 ACTS OF HOLDERS.
(i) 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; and, except as
herein otherwise expressly provided, such action shall become effective
when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, the Parent or the Company. Such
instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "ACT" of the
Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee, the Parent and the Company, if
made in the manner provided in this Section.
(ii) 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
Person acting in a capacity other than such Person's individual
capacity, such certificate or affidavit shall also constitute
sufficient proof of the authority of the Person executing the same. 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.
(iii) The ownership of Securities shall be proved by the
Security Register.
(iv) 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.
(v) The Company may set any day as a record date for the
purpose of determining the Holders of Outstanding Securities entitled
to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture
to be given or taken by Holders of Securities. With regard to any
record date set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date (or their duly appointed agents), and
only such Persons, shall be entitled to give or take the relevant
action, whether or not such Holders remain Holders after such record
date.
24
Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents, each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount. Unless otherwise
provided in or pursuant to this Indenture, a Holder, including a Depository or
its nominee that is a Holder of a Global Security, may make, give or take, by a
proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be made, given or taken by Holders, and a Depository or its
nominee that is a Holder of a Global Security may provide its proxy or proxies
to the beneficial owners of interests in any such Global Security through such
Depository's standing instructions and customary practices.
1.5 NOTICES, ETC., TO TRUSTEE, PARENT AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Parent or 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: ___________________;
(b) 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 to the attention of __________ 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; or
(c) the Parent 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 Parent, addressed to it
to the attention of __________ 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 Parent.
1.6 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
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 by mail,
then such notification as shall be made by a method approved by the Trustee as
one which would be most reliable under the
25
circumstances for successfully delivering the notice to the addressees shall
constitute a sufficient notification for every purpose hereunder.
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.
1.7 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required to be a part of and govern this
Indenture, such required provision of the Trust Indenture Act shall control. If
any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision of the Trust
Indenture Act shall be deemed to apply to this Indenture as so modified or shall
be excluded, as the case may be.
1.8 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.
1.9 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company, the
Parent and the other Guarantors shall bind its successors and assigns, whether
so expressed or not. All covenants and agreements in this Indenture by the
Trustee shall bind its successors, whether so expressed or not.
1.10 SEVERABILITY CLAUSE.
In case any provision in this Indenture or in the Securities 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.
1.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
1.12 GOVERNING LAW.
This Indenture and the Securities and the rights and obligations of the
parties hereto and thereto, including the interpretation, construction, validity
and enforceability thereof, shall be governed by, and construed and interpreted
in accordance with, the laws of the State of New York, without regard to the
conflict of laws principles thereof.
26
1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date or Stated Maturity of any
Security or the last date on which a Holder has the right to convert his
Securities shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal (and premium, if any) or conversion of the Securities need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity, or on such last day for conversion, provided that no interest shall
accrue for the period from and after such Interest Payment Date or Stated
Maturity, as the case may be.
1.14 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan
or other agreement of the Company or the Parent or their respective Subsidiaries
or of any other Person. Any such indenture, loan or other agreement may not be
used to interpret this Indenture.
1.15 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator,
partner or stockholder of the Company or the Parent, as such, will have any
liability for any obligations of the Company or the Parent under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder of Securities by accepting a
Security waives and releases all such liability. The waiver and release are part
of the consideration for issuance of the Securities. The waiver may not be
effective to waive liabilities under the federal securities laws.
ARTICLE TWO
FORMS OF SECURITIES
2.1 FORMS GENERALLY.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, 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,
as evidenced by their execution thereof.
The definitive Securities relating thereto shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
27
2.2 FORM OF FACE OF SECURITY.
TEXAS PETROCHEMICALS LP
7-1/4% Senior Secured Convertible Notes Due 2009
No._____ $__________
Texas Petrochemicals LP, a limited partnership duly organized and
existing under the laws of the State of Texas (herein called the "Company",
which term includes any successor entity under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ____________, or
registered assigns, the principal sum of _____________ Dollars on ______, ____
and to pay interest thereon from _______, 2004, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on ________ and _____________ in each year, commencing __________, 2004, at the
rate of 7-1/4% per annum, until the principal hereof is paid or made available
for payment. Interest on this Security shall be calculated on the basis of a
360-day year of 12 30-day months. Interest on overdue principal (and, the extent
lawful, on overdue installments of interest) shall accrue at the rate that is 2%
per annum in excess of the rate specified in the preceding sentence. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the __________ or _________ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture. Payment of the principal of (and premium, if any) and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, New York, and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
28
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
________________________________
By______________________________
Attest:
__________________________
2.3 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 7-1/4% Senior Secured Convertible Notes Due 2009
(herein called the "Securities"), limited in aggregate principal amount to
$60,000,000.00, issued and to be issued under an Indenture, dated as of
__________ __, 2004 (herein called the "Indenture"), among the Company, the
Guarantors (as defined in the Indenture, which term includes any successor
guarantor(s) under the Indenture) and ____________________, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Guarantors, the Trustee and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or before
the close of business on _______, 2009, to convert this Security (or any portion
of the principal amount hereof which is $1,000 or an integral multiple thereof),
at the principal amount hereof, or of such portion, into fully paid and
non-assessable shares (calculated as to each conversion to the nearest 1/100 of
a share) of Common Stock of [Name of Parent] (herein called the "Parent", which
term includes any successor corporation under the Indenture hereinafter referred
to) at a Conversion Price equal to $9.340033 aggregate principal amount of
Securities for each share of Common Stock (or at the current adjusted Conversion
Price if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Parent or in blank, to the
Parent at its office or agency in the Borough of Manhattan, The City of New
York, New York, or at any other office or agency maintained by the Parent for
such purpose, accompanied by written notice to the Parent that the Holder hereof
elects to convert this Security, or if less than the entire principal amount
hereof is to be converted, the portion hereof to be converted, and, in case such
surrender shall be made during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date (unless this Security or the portion
thereof being converted matures prior to such Interest Payment Date), also
accompanied by payment in same day funds or other funds acceptable to the Parent
of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid
requirement for payment and, in the case of a conversion after the Regular
Record Date next preceding any Interest
29
Payment Date and on or before such Interest Payment Date, to the right of the
Holder of this Security (or any Predecessor Security) of record at such Regular
Record Date to receive an installment of interest (with certain exceptions
provided in the Indenture), no payment or adjustment is to be made on conversion
for interest accrued hereon or for dividends on the Common Stock issued on
conversion. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest the Parent
shall pay a cash adjustment as provided in the Indenture. The Conversion Price
is subject to adjustment as provided in the Indenture. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Parent is a party or the transfer of substantially all of the assets of the
Parent, the Indenture shall be amended, without the consent of any Holders of
Securities, so that this Security, if then Outstanding, will be convertible
thereafter, during the period this Security shall be convertible as specified
above, only into the kind and amount of securities, cash and other property
receivable upon the consolidation, merger or transfer by a holder of the number
of shares of Common Stock into which this Security might have been converted
immediately prior to such consolidation, merger or transfer (assuming such
holder of Common Stock failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of Non-Electing
Shares).
In the event of repurchase or conversion of this Security in part only,
a new Security or Securities for the unrepurchased or unconverted portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In the event there shall occur any Change of Control, each Holder of
Securities shall have the right, at such Holder's option but subject to the
conditions set forth in the Indenture, to require the Company to purchase on the
Change of Control Payment Date all or any part of such Holder's Securities at a
Change of Control Purchase Price equal to 101% of the principal amount thereof,
together with accrued and unpaid interest to the Change of Control Payment Date,
provided, however, that if the Change of Control Payment Date is on or after a
Regular Record Date and on or before the related Interest Payment Date, the
Company shall pay the full amount of any accrued and unpaid interest to the
Person in whose name a Security is registered at by close of business on such
Regular Record Date, all as and in the manner specified in the Indenture.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the Guarantors and the rights of the Holders of the Securities under
the Indenture at any time by the Company and the Guarantors and the Trustee with
the consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of specified percentages in aggregate principal amount of
the Securities at the time Outstanding, on behalf of the Holders of all the
Securities, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
30
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any,)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, City of New York,
New York, or at any other office or agency maintained by the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws principles
thereof.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
31
2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
______________________________
as Trustee
By____________________________
Authorized Officer
2.5 FORM OF ELECTION TO CONVERT.
To [Name of Parent]:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or the portion below designated, into shares of
Common Stock of [Name of Parent] in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for fractional
shares, be issued in the name of and delivered to the undersigned registered
Holder hereof, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest accompanies this Security.
Dated:___________________
Portion of Security to be
converted ($1,000 or an
integral multiple thereof):
$
____________________________________________
Signature (for conversion only)
If shares of Common Stock are to be issued
and registered otherwise than to the
registered Holder named above, please print
or typewrite name and address, including zip
code, and social security or other taxpayer
identification number.
____________________________________________
____________________________________________
____________________________________________
32
ARTICLE THREE
THE SECURITIES
3.1 TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $60,000,000.00, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5,
3.6, 9.6, or 11.2.
The Securities shall be known and designated as the "7-1/4% Senior
Secured Convertible Notes Due 2009" of the Company. Their Stated Maturity shall
be __________ __, 2009, and they shall bear interest at the rate of 7-1/4% per
annum, from _______, 2004, payable semi-annually on __________ and __________,
commencing _________, 2004 until the principal thereof is paid or made available
for payment.
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company in the Place of Payment
maintained for such purpose and at any other office or agency maintained by the
Company for such purpose; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be convertible as provided in Article Eleven.
The Securities shall be secured as provided in Article Twelve.
The Securities shall be guaranteed as provided in Article Thirteen.
3.2 DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by the
Parent, in its capacity as the general partner of the Company, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any or all of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Parent, as general partner of
the Company, shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Parent, as
general partner of the Company, to
33
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
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.
3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Parent, as
general partner of the Company, may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Securities which may be printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and 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.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 10.2, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Parent, as general partner of the Company, shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of authorized denominations. Until so exchanged,
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall keep or cause to be kept a register (the register
maintained either at the Corporate Trust Office of the Trustee or in any other
office or agency designated pursuant to Section 10.2 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 Securities and of transfers of Securities. Any such register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. The Trustee is hereby appointed "SECURITY
REGISTRAR" for the purpose of registering Securities and transfers of Securities
as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 10.2 for such
purpose, the Parent, as general partner of the Company, shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denominations and
of a like aggregate principal amount.
34
At the option of the Holder, Securities may be exchanged for other
Securities 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 Parent, as
general partner of the Company, shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligation 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 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 (if other than the
Company) 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 conversion, transfer or exchange of Securities, other
than exchanges pursuant to Section 3.4, 9.6, 10.13, 10.16 or 11.2 not involving
any transfer.
Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global Security or
a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
Any exchange of a Global Security for other Securities may be made in
whole or in part, and all Securities issued in exchange for a Global Security or
any portion thereof shall be registered in such names as the Depository for such
Global Security shall direct.
If at any time the Depository for the Securities notifies the Company
that it is unwilling or unable to continue as Depository for the Securities or
if at any time the Depository for the Securities shall no longer be qualified to
serve as the Depository, the Company shall appoint a successor Depository with
respect to the Securities. If a successor Depository for the Securities is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Securities, will authenticate and deliver Securities of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for such
Global Security or Securities.
The Company may at any time and in its sole discretion determine that
Securities issued in the form of one or more Global Securities shall no longer
be represented by such Global Securities. In such event, the Parent, as general
partner of the Company, will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive
35
Securities, will authenticate and deliver Securities of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of the Global Security or Securities in exchange for such Global Security or
Securities.
Notwithstanding any other provision in this Indenture, no Global
Security may be transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depository for such Global
Security or any nominee thereof, and no such transfer may be registered, unless
(1) such Depository (A) notifies the Company that it is unwilling or unable to
continue as Depository for such Global Security or (B) ceases to be qualified to
serve as Depository, (2) the Parent, as general partner of the Company, executes
and delivers to the Trustee a Company Order that such Global Security shall be
so transferable, registrable and exchangeable, and such transfers shall be
registrable, or (3) there shall have occurred and be continuing an Event of
Default. Notwithstanding any other provision in this Indenture, a Global
Security to which the restriction set forth in the preceding sentence shall have
ceased to apply may be transferred only to, and may be registered and exchanged
for Securities registered only in the name or names of, such Person or Persons
as the Depository for such Global Security shall have directed and no transfer
thereof other than such a transfer may be registered.
Every Security authenticated and delivered upon registration of
transfer, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of the preceding paragraph shall
apply, whether pursuant to this Section, Sections 3.4, 3.6, 9.6, or 11.2 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security unless such Security is registered in the name of a Person other
than the Depository for such Global Security or a nominee thereof.
3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Parent, as
general partner of the Company, shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of like tenor and principal
amount and bearing a number not contemporaneously Outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
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 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, a new Security of like tenor and principal amount and bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed
36
in relation thereto and any other expenses (including the fees and expenses of
the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities 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.
3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security 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 notwithstanding the fact that such Holder was a
Holder on such Regular Record Date, and such Defaulted Interest may be paid by
the Company, at its election, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, 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 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 Securities (or their
37
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 (ii).
(ii) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
In the case of any Security which is repurchased after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date,
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such repurchase, and such interest
(whether or not punctually paid or duly provided for) 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 such Regular Record Date.
3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a 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 Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of (and premium,
if any) and (subject to Section 3.7) interest on such 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.
No Person entitled to any beneficial interest in any Global Security
held on its behalf by a Depository or its nominee shall, as such, have any
rights under this Indenture with respect to such Global Security, and such
Depository or its nominee may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the owner of such Global Security for all
purposes whatsoever. None of the Company, the Trustee, any Authenticating Agent,
any Paying
38
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
3.9 CANCELLATION.
All Securities surrendered for payment, registration of transfer or
exchange or conversion shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly 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.
3.10 COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
3.11 FORM OF LEGEND FOR GLOBAL SECURITIES.
Every Global Security authenticated and delivered hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a
Depository or a nominee of a Depository. 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 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 FOUR
SATISFACTION AND DISCHARGE
4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when:
(a) either
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(i) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.6
and (ii) Securities 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 10.3) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year,
and the Company, in the case of (A) or (B) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity, as the case may be;
(C) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
(D) 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 have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14, rights of
registration of transfer, substitution and exchange and conversion of the
Securities and, if money shall have been deposited with the Trustee pursuant to
Subclause (ii) of clause (a) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3, shall survive.
4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 4.1 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
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ARTICLE FIVE
REMEDIES
5.1 EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order or any court or any order, rule or regulation
of any administrative or governmental body):
(i) default in the payment of any interest upon any
Security when it becomes due and payable, and continuance of such
Default for a period of 30 days; or
(ii) default in the payment of the principal of (or
premium, if any, on) any Security when such principal becomes due and
payable at its Maturity or otherwise (including the failure to make
payment to purchase Securities properly tendered pursuant to a Change
of Control Offer, Asset Sale Offer or Loss Proceeds Offer); or
(iii) failure by the Parent to deliver shares of Common
Stock when such Common Stock is required to be delivered following
conversion of a Security and continuation of such default for a period
of 10 days; or
(iv) one or more judgments which are not covered by
insurance (with deductibles, self-insurance or retention be treated as
not covered by insurance) in an aggregate amount in excess of
$2,000,000 shall have been rendered against the Company or any of its
Restricted Subsidiaries and such judgments remain undischarged, unpaid
or unstayed for a period of 60 days after such judgment or judgments
become final and non-appealable; or
(v) any Guarantee ceases to be in force and effect or any
Guarantee is declared to be null and void and unenforceable or any
Guarantee is found to be invalid or any Guarantor denies its liability
under its Guarantee (other than by reason of release of a Guarantor in
accordance with the terms of this Indenture); or
(vi) (A) the failure of the Company or any Guarantor to
comply with any covenant or agreement contained in any of the Security
Documents (after the lapse of any applicable grace periods) which
adversely affects the value of the Collateral or the enforceability,
validity, perfection or priority of any Lien on the Collateral or the
enforceability, validity, perfection or priority of any Lien on the
Collateral in favor or the Trustee on any portion or portions of the
Collateral with an aggregate fair market value in excess of $2,000,000;
(B) the repudiation or disaffirmation by the Company or any Guarantor
of its obligations under the Security Documents or the determination in
a judicial proceeding that any of the Security Documents is
unenforceable or invalid against the Company or any Guarantor for any
reason affecting Collateral with an aggregate fair market value in
excess of $2,000,000; or (C) except for expiration in accordance with
its terms or amendment, modification, waiver, termination or release in
accordance with the terms of the Indenture, any Security Document shall
cease to be in force and effect or cease to be effective in all
material respects to grant a perfected Lien
41
with the priority purported to be created thereby on any portion or
portions of the Collateral with an aggregate fair market value in
excess of $2,000,000 if, in either case, such default continues for 10
days after notice; or
(vii) default in the performance, or breach, of any
covenant or warranty of the Company or Guarantor 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), and
continuance of such default or breach for a period of 60 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 33-1/3% in principal amount of the 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
(viii) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company or any
Restricted Subsidiary or under any mortgage, indenture or instrument
under which there may be issued, or by which there may be secured or
evidenced, any indebtedness for money borrowed by the Company or any
Restricted Subsidiary, whether such indebtedness now exists or shall
hereafter be created, incurred, assessed or guaranteed, which default
shall constitute a failure to pay any portion of the principal of such
indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or shall have resulted in
any portion of such indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, without such indebtedness having been discharged or such
acceleration having been rescinded or annulled, and such portions of
such indebtedness so due and payable exceed $2,000,000 in the aggregate
for all such defaults; provided, however, that if such default under
such mortgage, indenture or instrument shall be remedied or cured by
the Company or Restricted Subsidiary , as the case may be, or waived by
the holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of the Securities; and
provided, further, that the Trustee (subject to Sections 6.1 and 6.2)
shall not be deemed to have knowledge of such default unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge of
such default or (B) the Trustee shall have received written notice
thereof at the Corporate Trust Office from the Company, the trustee
under any such mortgage, indenture or instrument, the holder or holders
of any such indebtedness or the agent of any such holder or holders or
any Holder of any Outstanding Securities; or
(ix) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company
or any Guarantor 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 or
Guarantor a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or Guarantor under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs,
42
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days; or
(x) the commencement by the Company or any Guarantor of a
voluntary case or proceeding under any applicable Bankruptcy Law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent,
or the consent by the Company to the entry of a decree or order for
relief in respect of the Company or any Guarantor in an involuntary
case or proceeding under any applicable Bankruptcy 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 the Company or any Guarantor 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 any Guarantor 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 or any Guarantor in furtherance of any such
action.
5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default described in
clause (ix) or (x) of Section 5.1, occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 33-1/3% in principal
amount of the Outstanding Securities may declare the principal of all the
Securities 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 shall become immediately due and payable. If an Event of Default
described in clause (ix) or (x) of Section 5.1 occurs and is continuing, the
principal of and interest on all of the Securities shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or the Holders.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if: the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest on the
Securities,
(ii) the principal of (and premium, if any, on) any
Securities which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate borne by the Securities,
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities, and
(iv) 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
43
(v) all Events of Default, other than the non-payment of
the principal of Securities which have become due solely by such
acceleration or declaration of acceleration, have been cured or waived
as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(i) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(ii) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof or
otherwise,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal (and premium, if any) and
interest, 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, at the rate borne by the Securities,
and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name 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 the 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 the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue
44
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any,) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents 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
(ii) to collect and receive any moneys 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 6.7.
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 or
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors or
other similar committee.
5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any,) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
First: To the payment of all amounts due the Trustee under
Section 6.7;
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Second: To the payment of the amounts then due and unpaid for
principal of (and premium, if any,) and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal (and premium, if any,) and interest, respectively; and
Third: The balance, if any, to the Person or Persons entitled
thereto, including, without limitation, the Company.
5.7 LIMITATION ON SUITS.
No Holder of any Security 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:
(i) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(ii) the Holders of not less than 33-1/3% in principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(iii) 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;
(iv) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any such
proceeding; and
(v) 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;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM
AND INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any,) and (subject to
Section 3.7) interest, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of repurchase, on the
Repurchase Date) and to convert such Security in accordance with Article Eleven
and to institute suit for the enforcement of any such payment and right to
convert, and such rights shall not be impaired without the consent of such
Holder.
46
5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the 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 had been instituted.
5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, 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.
5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
5.12 CONTROL BY HOLDERS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(i) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(ii) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default:
47
(i) in the payment of the principal of (or premium, if
any,) or interest on any Security, or
(ii) 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.
5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
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
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,
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 any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
repurchase, on or after the Repurchase Date) or for the enforcement of the right
to convert any Security in accordance with Article Eleven.
5.15 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
6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
48
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, 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:
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) 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;
(iii) 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 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(iv) 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.
6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Security Register, notice of
49
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 any Security,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interest of the Holders; and provided, further, that in
the case of any default of the character specified in Section 5.1(vii), no such
notice to Holders shall be given until at least 30 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.
6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(i) 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, 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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) 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 or 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;
(vi) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
50
examine the books, records and premises of the Company, personally or
by agent or attorney; and
(vii) 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.
6.4 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.
6.5 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, subject to Sections
6.8 and 6.13, 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.
6.6 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.
6.7 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(i) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder not to exceed
$___________ in any year;
(ii) 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
(iii) 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 this trust, including the costs and
51
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
The Company's payment obligations pursuant to this Section shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of an Event of Default specified in Section 5.1, the expenses are
intended to constitute expenses of administration under any bankruptcy law.
6.8 DISQUALIFICATION; CONFLICTING INTEREST.
(i) If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign, to the
extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture.
(ii) In the event that the Trustee shall fail to comply
with the provisions of Subsection (i) of this Section with respect to
the Securities, the Trustee shall, within 10 days after the expiration
of such 90-day period, transmit by mail to all Holders of Securities,
as their names and addresses appear in the Security Register, notice of
such failure.
6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be one or more Trustee(s) hereunder at least
one of whom shall be at all times 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 the aforesaid supervising or examining authority, then
for the purposes of this Section 6.9, 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
for the Securities 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. Neither the Company nor any Person
directly or indirectly controlling, controlled by, or under common control with
the Company shall serve as trustee for the Securities of any series issued
hereunder.
6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(i) 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 under Section 6.11.
(ii) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been
52
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(iii) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(iv) If at any time:
(A) the Trustee shall fail to comply with
Section 6.8 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
(B) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(C) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(v) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(vi) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor
Trustee and the address of its Corporate Trust Office.
53
6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of 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. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
6.12 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 that
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.
6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
(a) Subject to Subsection (iii) of this Section, if the Trustee
shall be or shall become a creditor, directly or indirectly, secured or
unsecured, of the Company within three months prior to a default, as defined in
Subsection (iv) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities, as defined in
Subsection (iv) of this Section:
(i) an amount equal to any and all reductions in the
amount due and owing upon any claim as such creditor in respect of
principal or interest, effected after the beginning of such three
months' period and valid as against the Company and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (ii) of this
Subsection, or from the exercise of any right of setoff which the
Trustee could have exercised if a petition in bankruptcy had been filed
by or against the Company upon the date of such default; and
54
(ii) all property received by the Trustee in respect of
any claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property, if disposed of, subject, however, to the rights, if any,
of the Company and its other creditors in such property or such
proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) to retain for its own account (i) payments
made on account of any such claim by any Person (other than
the Company) who is liable thereon, and (ii) the proceeds of
the bona fide sale of any such claim by the Trustee to a third
Person, and (iii) distributions made in cash, securities or
other property in respect of claims filed against the Company
in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or
applicable state law;
(B) to realize, for its own account, upon any
property held by it as security for any such claim, if such
property was so held prior to the beginning of such three
months' period;
(C) to realize, for its own account, but only to
the extent of the claim hereinafter mentioned, upon any
property held by it as security for any such claim, if such
claim was created after the beginning of such three months'
period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause
to believe that a default, as defined in Subsection (iv) of
this Section, would occur within three months; or
(D) to receive payment on any claim referred to
in paragraph (B) or (C), against the release of any property
held as security for such claim as provided in paragraph (B)
or (C), as the case may be, to the extent of the fair value of
such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any such paragraphs is created in renewal
of or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of the Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders and the holders of other indenture securities in such
manner that the Trustee, the Holders and the holders of other indenture
securities realize, as a result of payments from such special account and
payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law,
55
the same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee and the Holders and the holders of other
indenture securities dividends on claims filed against the Company in bankruptcy
or receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, whether such distribution is
made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion among the Trustee, the
Holders and the holders of other indenture securities, in accordance with the
provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Holders and the holders of other indenture securities with respect to their
respective claims, in which event it shall not be necessary to liquidate or to
appraise the value of any securities or other property held in such special
account or as security for any such claim, or to make a specific allocation of
such distributions as between the secured and unsecured portions of such claims,
or otherwise to apply the provisions of this paragraph as a mathematical
formula.
Any Trustee which has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this Subsection
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this Subsection if and only if the
following conditions exist:
(E) the receipt of property or reduction of
claim, which would have given rise to the obligation to
account, if such Trustee had continued as Trustee, occurred
after the beginning of such three months' period; and
(F) such receipt of property or reduction of
claim occurred within three months after such resignation or
removal.
(iii) There shall be excluded from the operation of
Subsection (a) of this Section a creditor relationship arising from:
(A) the ownership or acquisition of securities
issued under any indenture, or any security or securities
having a maturity of one year or more at the time of
acquisition by the Trustee;
(B) advances authorized by a receivership or
bankruptcy court of competent jurisdiction or by this
Indenture, for the purpose of preserving any property which
shall at any time be subject to the lien of this Indenture or
of
56
discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances
surrounding the making thereof is given to the Holders at the
time and in the manner provided in this Indenture;
(C) disbursements made in the ordinary course of
business in the capacity of trustee under an indenture,
transfer agent, registrar, custodian, paying agent, fiscal
agent or depositary, or other similar capacity;
(D) an indebtedness created as a result of
services rendered or premises rented; or an indebtedness
created as a result of goods or securities sold in a cash
transaction, as defined in Subsection (iv) of this Section;
(E) the ownership of stock or of other
securities of a corporation organized under the provisions of
Section 25(a) of the Federal Reserve Act, as amended, which is
directly or indirectly a creditor of the Company; and
(F) the acquisition, ownership, acceptance or
negotiation of any drafts, bills of exchange, acceptances or
obligations which fall within the classification of
self-liquidating paper, as defined in Subsection (iv) of this
Section.
(iv) For the purposes of this Section only:
(A) the term "default" means any failure to make
payment in full of the principal of or interest on any of the
Securities or upon the other indenture securities when and as
such principal or interest becomes due and payable;
(B) the term "other indenture securities" means
securities upon which the Company is an obligor outstanding
under any other indenture (i) under which the Trustee is also
trustee, (ii) which contains provisions substantially similar
to the provisions of this Section, and (iii) under which a
default exists at the time of the apportionment of the funds
and property held in such special account;
(C) the term "cash transaction" means any
transaction in which full payment for goods or securities sold
is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon
banks or bankers and payable upon demand;
(D) the term "self-liquidating paper" means any
draft, xxxx of exchange, acceptance or obligation which is
made, drawn, negotiated or incurred by the Company for the
purpose of financing the purchase, processing, manufacturing,
shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession
of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of goods, wares
or merchandise previously constituting the security, provided
the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company
arising from the making, drawing, negotiating or incurring of
the draft, xxxx of exchange, acceptance or obligation;
57
(E) the term "Company" means any obligor upon
the Securities; and
(F) the Term "Federal Bankruptcy Act" means the
Bankruptcy Act or Title 11 of the United States Code.
6.14 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, partial
conversion or partial redemption or pursuant to Section 3.6, 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, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. 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, the Company, the Authenticating Agent or such
successor corporation.
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 rights, powers and duties of its predecessor hereunder, with
like effect as if
58
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 6.7.
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 described in the within mentioned
Indenture.
____________________________________
As Trustee
By:_________________________________
As Authenticating Agent
By:_________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, and
(ii) 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 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.
7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(i) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained
in the most recent list furnished to the Trustee as provided in Section
7.1 and the names and addresses of Holders received by the Trustee in
its capacity as Security Registrar, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
59
(ii) If three or more Holders (herein referred to as
"APPLICANTS") apply in writing to the Trustee, and furnish to the
Trustee reasonable proof that each such applicant has owned a Security
for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this
Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(A) afford such applicants access to the
information preserved at the time by the Trustee in accordance
with Section 7.2(i), or
(B) inform such applicants as to the approximate
number of Holders whose names and addresses appear in the
information preserved at the time by the Trustee in accordance
with Section 7.2(i), and as to the approximate cost of mailing
to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 7.2(i) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such a mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(iii) Every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of any 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
7.2(ii), 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
7.2(ii).
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7.3 REPORTS BY TRUSTEE.
(i) The term "reporting date", as used in this Section,
shall be May 15, commencing with May 15 of the year following the first
issue of any Securities under this Indenture. Within 60 days after the
reporting date in each year, or at any other times as may be required
by the Trust Indenture Act, the Trustee shall transmit by mail to all
Holders, as their names and addresses appear in the Security Register,
a brief report dated as of such May 15 with respect to any of the
following events which may be occurred during the twelve months
preceding the date of such report (but if no such event has occurred
within such period, no report need be transmitted:
(A) any change to its eligibility under Section
6.9 and its qualifications under Section 6.8, or in lieu
thereof, if to the best of its knowledge it has continued to
be eligible and qualified under said Sections, a written
statement to such effect;
(B) the character and amount of any advances
(and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such)
which remain unpaid on the date of such report, and for the
reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on any property or
funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not
more than 1/2 of 1% of the principal amount of the Securities
Outstanding on the date of such report;
(C) the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any
other obligor on the Securities) to the Trustee in its
individual capacity, on the date of such report, with a brief
description of any property held as collateral security
therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in Section
6.13(a)(iii)(B), (C), (D) or (F);
(D) the property and funds, if any, physically
in the possession of the Trustee as such on the date of such
report;
(E) any additional issue of Securities which the
Trustee has not previously reported; and
(F) any action taken by the Trustee in the
performance of its duties hereunder which it has not
previously reported and which in its opinion materially
affects the Securities, except action in respect of a default,
notice of which has been or is to be withheld by the Trustee
in accordance with Section 6.2.
(ii) The Trustee shall transmit by mail to all Holders, as
their names and addresses appear in the Security Register, a brief
report with respect to the character and amount of any advances (and if
the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the
last report transmitted pursuant to Subsection (i) of this Section (or
if no such report has yet
61
been so transmitted, since the date of execution of this instrument)
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities, on property or funds held or collected
by it as Trustee and which it has not previously reported pursuant to
this Subsection, except that the Trustee shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any
time aggregate 10% or less of the principal amount of the Securities
Outstanding at such time, such report to be transmitted within 90 days
after such time.
(iii) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities
exchange upon which Securities are listed, and also with the Commission
and with the Company. The Company will notify the Trustee when
Securities are listed on any securities exchange.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
(whether or not the Company is the surviving corporation) or convey, transfer or
lease its properties and assets substantially as an entirety to any Person,
unless:
(i) either (A) the Company is the surviving corporation
or (B) the Person (other than the Company) 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 Person organized
and validly 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 by
such Person to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any,) and
interest on all the Securities and the performance of every covenant of
this Indenture and Security Documents on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Section 11.10;
(ii) immediately after giving effect to such transaction,
(A) 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 (B) the Company or the surviving Person, as the case
may be, shall be able to Incur at least $1.00 of additional
Indebtedness under Section 10.12; and
(iii) 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.
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8.2 SUCCESSOR SUBSTITUTED FOR COMPANY.
Upon any consolidation of the Company with, or merger of 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 8.1, 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, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities. In the event of any such conveyance or transfer, the Company
as the predecessor corporation may be dissolved, wound up and liquidated at any
time thereafter.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
9.1 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:
(i) 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
(ii) to add to the covenants of the Company for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
(iii) to secure the Securities or the Guarantees or to add
Collateral; or
(iv) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Section 11.10; or
(v) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provision of this Indenture, provided such action pursuant to
this clause (v) shall not adversely affect the interests of the Holders
in any material respect; or
(vi) to add or release Guarantors in accordance with the
terms of this Indenture; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect or maintain
the qualification of this Indenture under the Trust Indenture Act, or
under any similar Federal statute hereafter enacted, and to add
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to this Indenture such other provisions as may be expressly permitted
by the Trust Indenture Act.
9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, 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 under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or change the place of payment where, or
the coin or currency in which, any Security or any premium or the
interest thereon is payable, or impair the right of any Holder to
receive payment of principal, interest or premium on such Holder's
Securities on or after the due dates therefore or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, adversely affect the right to convert any
Security as provided in Article Eleven (except as permitted by Section
9.1(iv)) or adversely affect the Guarantees as provided in Article
Thirteen, or
(ii) reduce the percentage in principal amount of the
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
(iii) modify any of the provisions of this Section or
Section 5.13, except to increase any such percentage or to provide that
certain other provisions of this Indenture, or
(iv) modify any provisions of any of the Guarantees or
Security Documents in a manner adverse to the Holders, or
(v) modify the provisions of Section 10.13 after the
occurrence of an Asset Sale or the provisions of Section 10.16 after
the occurrence of a Change of Control; or
(vi) subordinate the Securities or the Guarantees to any
other Indebtedness.
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.
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9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) 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
(except to the extent required in the case of a supplemental indenture entered
into under Section 9.1(vii)) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
COVENANTS
10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and premium,
if any,) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
10.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Place of Payment an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange where notices and
demands to or upon the Company in respect of the Securities and this Indenture
may be served. The Parent will maintain in the Place of Payment, an office or
agency where Securities may be surrendered for conversion. The
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Company and the Parent will each 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, and the Company and the Parent hereby
appoint the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company or the Parent may also from time to time designate one or
more other offices or agencies (in or outside of the Place of Payment) where the
Securities 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 or the Parent
of its obligation to maintain an office or agency in the Place of Payment for
such purposes. The Company and the Parent will each 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.
10.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of (and premium, if any,) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such 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, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, 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 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:
(i) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(ii) give the Trustee notice of any default by the Company
(or any obligor upon the Securities) in the making of any payment of
principal (and premium, if any) or interest; and
(iii) 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.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such 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 and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Place of Payment, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
10.4 EXISTENCE; LINE OF BUSINESS.
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 existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders. The
Company and each Guarantor shall not be engaged in any line of business other
than the lines of business in which it is engaged on the Original Issue Date;
provided, however, that the Company or a Guarantor may engage in other
businesses or activities provided that all of such other businesses or
activities are not in the aggregate material to the Company or such Guarantor.
10.5 MAINTENANCE OF PROPERTIES; INSURANCE.
The Company and each Guarantor will cause all properties used or useful
in the conduct of its business 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 or such Guarantor
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 10.5 shall prevent the Company or any Guarantor from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company or such Guarantor, desirable
in the conduct of its business and not disadvantageous in any
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material respect to the Holders. The Company and each Guarantor shall keep at
all times all of its properties which are of an insurable nature insured (which
may include self-insurance) against loss or damage with insurers believed by the
Company to be responsible to the extent that property of similar character is
usually so insured by Persons similarly situated and owning like properties in
accordance with good business practice. The Company and each Guarantor shall
keep at all times business interruption insurance with such amounts of coverage
as is customary for Persons of a comparable size and operating in a comparable
business.
10.6 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, (1) all 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 (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any 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.
10.7 REPORTS.
Each of the Parent and the Company shall:
(i) file with the Trustee, within 15 days after the
Parent or the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations
prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;
or, if the Parent or the Company is not required to file information,
documents or reports pursuant to either of said Sections, then it shall
file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(ii) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(iii) transmit by mail to all Holders, as their names and
addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by the Parent or the Company
pursuant to paragraphs (i) and (ii) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
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Notwithstanding the foregoing and to the extent permitted by Regulation
S-X under the Exchange Act as reasonably determined by outside counsel to the
Parent, all of the information, reports and filings otherwise required of the
Company may instead be supplied by and relate to the Parent if Parent (A)
remains a Guarantor with direct and indirect ownership of 100% of the Equity
Interests of the Company, (B) has no material assets other than the Equity
Interests of the Company, the Equity Interests of the sole limited partner of
the Company, and property distributed thereon to be distributed by the Parent to
the stockholders of the Parent, (C) has no material business operations, and (D)
has no material liabilities other than liabilities for corporate franchise and
other taxes and for other operating and administrative expenses directly
attributable to the operation and administration of the Parent's Subsidiaries.
10.8 COMPLIANCE CERTIFICATE.
(i) The Company and each Guarantor (to the extent that
such Guarantor is so required under the Trust Indenture Act) shall
deliver to the Trustee, within 90 days after the end of each fiscal
year, an Officers' Certificate stating that a review of the activities
of the Company and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view
to determining whether the Company has kept, observed, performed and
fulfilled its obligations under this Indenture, and further stating, as
to each such Officer signing such certificate, that to the best of his
or her knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is
not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture (or, if a Default or Event
of Default shall have occurred, describing all such Defaults or Events
of Default of which he or she may have knowledge and what action the
Company is taking or proposes to take with respect thereto) and that to
the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Securities is prohibited or if such event has
occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(ii) So long as not contrary to the then current
recommendations of the American Institute of Certified Public
Accountants, the year-end financial statements delivered pursuant to
this Section 10.8 shall be accompanied by a written statement of the
Company's independent public accountants (who shall be a firm of
established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has
come to their attention that would lead them to believe that the
Company has violated any provisions of Article 10 or Article 13 hereof
or, if any such violation has occurred, specifying the nature and
period of existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(iii) The Company shall, so long as any of the Securities
are outstanding, deliver to the Trustee, forthwith upon and in any
event within 10 Business Days after any Officer's becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
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10.9 STAY, EXTENSION AND USURY LAWS.
The Company and each of the Guarantors covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Company and
each of the Guarantors (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
10.10 LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, make a Restricted Payment if at the time
the Company or such Restricted Subsidiary makes such Restricted Payment:
(i) a Default shall have occurred and be continuing (or
would result therefrom);
(ii) the Company is not entitled to Incur an additional
$1.00 of Indebtedness under Section 10.12; or
(iii) the aggregate amount of such Restricted Payment and
all other Restricted Payments since the Original Issue Date made
pursuant to this Section (iii) and all Restricted Payments since the
Original Issue Date made pursuant to Section 10.10(b)(i), (b)(iii) and
(b)(iv) would exceed the sum of (without duplication):
(A) 50% of the Consolidated Net Income accrued
during the period (treated as one accounting period) from the
beginning of the fiscal quarter immediately following the
fiscal quarter during which the Original Issue Date occurs to
the end of the most recent fiscal quarter ending at least 45
days prior to the date of such Restricted Payment (or, in case
such Consolidated Net Income shall be a deficit, minus 100% of
such deficit); plus
(B) 100% of the aggregate Net Cash Proceeds
received by the Company from the issuance or sale of its
Equity Interests (other than Disqualified Equity Interests)
subsequent to the Original Issue Date (other than an issuance
or sale to a Subsidiary of the Company) and 100% of any cash
capital contribution received by the Company from its partners
subsequent to the Original Issue Date; plus
(C) the amount by which Indebtedness of the
Company is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Subsidiary of the
Company) subsequent to the Original Issue Date of any
Indebtedness of the Company convertible or exchangeable for
Equity Interests (other than Disqualified Equity Interests) of
the Company (less the amount of any
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cash, or the fair value of any other property, distributed by
the Company upon such conversion or exchange); plus
(D) an amount equal to the sum of (x) the net
reduction in the Investments (other than Permitted
Investments) made by the Company or any Restricted Subsidiary
in any Person resulting from repurchases, repayments or
redemptions of such Investments by such Person, proceeds
realized on the sale of such Investment and proceeds
representing the return of capital (excluding amounts that
contribute to Consolidated Net Income), in each case received
by the Company or any Guarantor and (y) the portion
(proportionate to the Company's equity interest in such
Subsidiary) of the fair market value of the net assets of an
Unrestricted Subsidiary at the time such Unrestricted
Subsidiary is designated a Restricted Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case
of any such Person or Unrestricted Subsidiary, the amount of
Investments (excluding Permitted Investments) previously made
(and treated as a Restricted Payment) by the Company or any
Restricted Subsidiary in such Person or Unrestricted
Subsidiary.
(b) The provisions of Section 10.10(a) shall not prohibit (but in
the case of subparagraphs (b)(iii)and (b)(iv) of this Section 10.10 only if no
Default has occurred and is continuing or would result therefrom):
(i) any Restricted Payment made out of the Net Cash
Proceeds of the substantially concurrent issuance or sale of, or made
by conversion into or exchange for, Equity Interests of the Company
(other than Disqualified Equity Interests and other than Equity
Interests issued or sold to a Subsidiary of the Company) or a
substantially concurrent cash capital contribution received by the
Company from one or more of its partners;
(ii) any purchase, repurchase, redemption, defeasance or
other acquisition or retirement for value of Indebtedness of the
Company or a Guarantor that is subordinated to the Securities or
Guarantees, as applicable, made by exchange for, or out of the proceeds
of the substantially concurrent issuance or sale of, subordinated
Indebtedness which is permitted to be Incurred pursuant to Section
10.12;
(iii) dividends paid within 60 days after the date of
declaration thereof if at such date of declaration such dividend would
have complied with this Section 10.10; provided, however, that such
dividend shall be included in the calculation of the amount of
Restricted Payments;
(iv) the purchase, redemption or other acquisition or
retirement for value of shares of Equity Interests of the Company or
any of its Subsidiaries, and dividends, distributions or advances to
the Parent to be used by the Parent for the purchase, redemption or
other acquisition or retirement for value of shares of Equity Interests
of the Parent, in each case from employees, former employees, directors
or former directors of the Parent or any of its Subsidiaries (or
permitted transferees of such employees, former employees, directors or
former directors), pursuant to the terms of the agreements
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(including employment agreements) or plans (or amendments thereto)
approved by the Board of Directors, under which such individuals
purchase or sell or are granted the option to purchase or sell such
Equity Interests; provided, however, that the aggregate amount of such
purchases, redemptions and other acquisitions or retirements shall not
exceed $1,000,000; provided, further that cashless exercises of options
and warrants from employees, former employees, directors or former
directors of the Parent or any of its Subsidiaries shall not be deemed
to be Restricted Payments for the purposes of this Section 10.10;
(v) dividends, distributions, payments or advances to the
Parent to be used by the Parent to pay Federal, state and local taxes
payable by the Parent and directly attributable to (or arising as a
result of) the operations of the Company and its Restricted
Subsidiaries; provided, however, that (A) the amount of such dividends
shall not exceed the amount that the Company and its Restricted
Subsidiaries would be required to pay in respect of such Federal, state
and local taxes were the Company to pay such taxes as a stand-alone
taxpayer and (B) such dividends pursuant to this clause (5) are used by
the Parent for such purposes within 20 days of the receipt of such
dividends; and
(vi) dividends, distributions, payments or advances to the
Parent to the extent necessary to pay for general corporate and
overhead expenses incurred by the Parent, including, without
limitation, directors fees, legal and audit expenses, Commission
compliance expenses and franchise and other taxes, in an aggregate
amount not to exceed $2,000,000 in any fiscal year of the Company.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the assets proposed
to be transferred by the Company or such Restricted Subsidiary, as the case may
be, in accordance with the Restricted Payment. The fair market value of any
non-cash Restricted Payment shall be determined in good faith by an Officer of
the Parent (if such fair market value is less than $1,000,000), or by the Board
of Directors (in all other cases), in each case pursuant to an Officers'
Certificate delivered to the Trustee.
10.11 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary to (i)(a) pay dividends or make any other distributions to
the Company or any of its Restricted Subsidiaries (1) on its Equity Interests or
(2) with respect to any other interest or participation in, or measured by, its
profits, or (b) pay any Indebtedness owed to the Company or any of its
Restricted Subsidiaries, (ii) make loans or advances to the Company or any of
its Restricted Subsidiaries, (iii) make loans or advances to, or Guarantee any
Indebtedness or other obligations of, the Company or any Restricted Subsidiary,
or (iv) transfer any of its properties or assets to the Company or any of its
Restricted Subsidiaries. However, the foregoing restrictions will not apply to
encumbrances or restrictions existing under or by reason of (a) the Revolving
Credit Facility, the Indenture, the Security Documents and the Securities, (b)
applicable law, (c) any instrument governing Indebtedness or
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Equity Interests of a Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition (except to the extent
such Indebtedness was Incurred in connection with or in contemplation of such
acquisition), which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person, or the
property or assets of the Person, so acquired; provided that, in the case of
Indebtedness, such Indebtedness was permitted by the terms of this Indenture to
be Incurred, (d) customary non-assignment provisions in leases, licenses and
other contracts and other contracts entered into in the ordinary course of
business and consistent with past practices, (e) purchase money obligations for
property acquired in the ordinary course of business that impose restrictions of
the nature described in clause (iv) of this Section 10.11 above on the property
so acquired, (g) any agreement for the sale of a Subsidiary or a substantial
portion of such Subsidiary's assets that restricts distributions by that
Subsidiary pending its sale, (h) Permitted Refinancing Indebtedness; provided
that the restrictions contained in the agreements governing such Permitted
Refinancing Indebtedness are not materially more restrictive, taken as a whole,
than those contained in the agreements governing the Indebtedness being
refinanced as determined in good faith by the Board of Directors, (i) provisions
with respect to the disposition or distribution of assets or property in joint
venture agreements and other similar agreements entered into in the ordinary
course of business, (j) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary course of
business, and (k) any agreement or instrument governing Indebtedness permitted
to be Incurred under this Indenture; provided that the terms and conditions of
any restrictions and encumbrances, taken as a whole, are not more restrictive
than those contained in this Indenture.
10.12 LIMITATION ON INCURRENCE OF INDEBTEDNESS.
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, Incur or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to any Indebtedness; provided, however,
that the Company may Incur Indebtedness and the Company's Subsidiaries may Incur
Indebtedness if the Consolidated Leverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is Incurred or such preferred stock is issued would not be greater than 3.5 to 1
determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been Incurred at the
beginning of such four-quarter period and, with respect to any fiscal quarter
beginning prior to the Original Issue Date, after giving pro forma effect to the
Reorganization Case as if the transactions related to the plan of reorganization
confirmed in connection with the Reorganization Case had been effected prior to
the beginning of such four-quarter period but without giving effect to any
extraordinary expenses related to the Reorganization Case.
The provisions of the first paragraph of this Section 10.12 will not
apply to the Incurrence of any of the following items of Indebtedness
(collectively, "PERMITTED DEBT"):
(i) the Incurrence by the Company and the Guarantors of
Indebtedness and letters of credit (with letters of credit being deemed
to have a principal amount equal to the stated amount thereof) and
other obligations under the Revolving Credit Facility in an aggregate
principal amount that does not exceed at any one time $50,000,000 less
the
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aggregate amount of all Net Proceeds of Asset Sales applied to repay
Indebtedness under such Revolving Credit Facility pursuant to Section
10.13 hereof (other than temporary paydowns pending final application
of such Net Proceeds);
(ii) the Incurrence by the Company and any of its
Restricted Subsidiaries of the Existing Indebtedness;
(iii) the Incurrence by the Company of Indebtedness
represented by the Securities in an aggregate principal amount not to
exceed $60,000,000;
(iv) the Incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to refund,
refinance or replace Indebtedness (other than intercompany
Indebtedness) that is permitted by this Indenture to be Incurred;
(v) the Incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between or among
the Company and any its Restricted Subsidiaries; provided, however,
that (i) if the Company is the obligor on such Indebtedness, such
Indebtedness is expressly subordinated to the prior payment in full in
cash of all Obligations with respect to the Securities and (ii)(A) any
subsequent issuance or transfer of Equity Interests that results in any
such Indebtedness being held by a Person other than the Company or a
Restricted Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Restricted
Subsidiary thereof shall be deemed, in each case, to constitute an
Incurrence of such Indebtedness by the Company or such Restricted
Subsidiary, as the case may be, that was not permitted by this clause
(v);
(vi) the Incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations;
(vii) the guarantee by the Company or any of its Restricted
Subsidiaries of Indebtedness of the Company or another Restricted
Subsidiary that was permitted to be Incurred by another provision of
this Section 10.12;
(viii) the Incurrence by the Company's Unrestricted
Subsidiaries of Non-Recourse Debt, provided, however, that if any such
Indebtedness ceases to be Non-Recourse Debt of an Unrestricted
Subsidiary, such event shall be deemed to constitute an Incurrence of
Indebtedness by a Restricted Subsidiary of the Company that was not
permitted by this clause (viii); and
(ix) the Incurrence by the Company or any of the
Guarantors of additional Indebtedness in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding, including
all Permitted Refinancing Indebtedness Incurred to refund, refinance or
replace any Indebtedness Incurred pursuant to this clause (ix), not to
exceed $10,000,000 at any time outstanding.
For purposes of determining compliance with this Section 10.12, in the
event that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Debt described
74
in clauses (i) through (ix) above or is entitled to be Incurred pursuant to the
first paragraph of this Section 10.12, the Company shall, in its sole
discretion, classify such item of Indebtedness, or later reclassify all or a
portion of such item of Indebtedness, in any manner that complies with this
Section 10.12.
10.13 LIMITATION ON ASSET SALES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company (or the
Restricted Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value (as determined in good
faith by a majority of the members of the Board of Directors who are not
Officers or employees of the Parent or any if its Subsidiaries) of the assets or
Equity Interests issued or sold or otherwise disposed of and (ii) at least 85%
of the consideration therefor received by the Company or such Restricted
Subsidiary is in the form of cash; provided that the amount of (x) any
liabilities (as shown on the Company's or such Restricted Subsidiary's most
recent balance sheet) of the Company or any Restricted Subsidiary (other than
contingent liabilities and liabilities that are by their terms subordinated to
the Securities or the Guarantees) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Company or
such Restricted Subsidiary from further liability and (y) in the case of any
Asset Sale constituting the transfer (by merger or otherwise) of all of the
Equity Interests of a Restricted Subsidiary, any liabilities (as shown on such
Restricted Subsidiary's most recent balance sheet) of such Restricted Subsidiary
(other than contingent liabilities and liabilities that are by their terms
subordinated to the Securities or the Guarantees) that will remain outstanding
after such transfer and will not be a liability of the Company or any other
Restricted Subsidiary of the Company following such transfer and (z) any
securities, notes or other obligations received by the Company or any such
Restricted Subsidiary from such transferee that are converted by the Company or
such Restricted Subsidiary within 90 days into cash (to the extent of the cash
received), shall be deemed to be cash for purposes of determining the percentage
of cash consideration reviewed under this provision. To the extent that the
assets which are the subject of any Asset Sale constitute Collateral, all
proceeds thereof shall, to the extent permitted by law, be subject to a
perfected Lien in favor of the Collateral Agent, and all Net Proceeds from such
an Asset Sale shall be deposited in the escrow account established by the
Security Documents.
Within 270 days after the receipt of any Net Proceeds from an Asset
Sale, the Company must use such Net Proceeds to make an investment in properties
and assets that replace the properties and assets that were the subject of the
Asset Sale or in properties and assets (excluding Equity Interests other than
Equity Interests of an entity that is (or immediately will become) a Guarantor)
that will be used in the business of the Company and its Restricted Subsidiaries
as existing on the Original Issue Date or in a business reasonably related
thereto. Pending the final application of any such Net Proceeds, the Company may
temporarily reduce revolving credit borrowings or otherwise invest such Net
Proceeds in any manner that is not prohibited by this Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to constitute "EXCESS PROCEEDS."
When the aggregate amount of Excess Proceeds exceeds $5,000,000, the Company
will be required to make a pro rata offer to all Holders of Securities and any
holders of other Indebtedness that is pari passu with the Securities or the
Guarantees in question and that requires such an offer and
75
contains provisions similar to those set forth in this Indenture with respect to
offers (an "ASSET SALE OFFER"), to purchase or redeem with the proceeds of sales
of assets in accordance with Section 10.16, the maximum principal amount of
Securities and such other pari passu Indebtedness that may be purchased out of
the Excess Proceeds, at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase, in accordance with the procedures set forth in this Indenture. To the
extent that any Excess Proceeds remain after consummation of an Asset Sale
Offer, the Company may use such Excess Proceeds for any purpose not otherwise
prohibited by this Indenture. The Company will comply with the requirements of
Rules 13e-4 and 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws or regulations are applicable in
connection with the repurchase of the Securities pursuant to an Asset Sale
Offer. To the extent that the provisions of any applicable securities laws or
regulations conflict with the provisions of this Indenture, the Company will
comply with such securities laws and regulations and shall not be deemed to have
breached its obligations described in this Indenture by virtue thereof. If the
aggregate principal amount of Securities tendered into such Asset Sale Offer
surrendered by Holders thereof exceeds the amount of Excess Proceeds allocated
for the Securities (the "OFFER AMOUNT"), the Trustee shall select the Securities
to be purchased on a pro rata basis. Upon completion of such Asset Sale Offer to
purchase, the amount of Excess Proceeds shall be reset at zero.
10.14 LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "AFFILIATE TRANSACTION"), unless
(i) such Affiliate Transaction is on terms that are no less favorable to the
Company or the relevant Restricted Subsidiary than those that would have been
obtained in a comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company delivers to the Trustee
(a) with respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $200,000, a Board
Resolution certifying that such Affiliate Transaction complies with clause (i)
above and that such Affiliate Transaction has been approved by a majority of the
disinterested members of the Board of Directors and (b) with respect to any
Affiliate Transaction or series of related Affiliate Transactions involving
aggregate consideration in excess of $2,000,000, an opinion as to the fairness
to the Company or such Restricted Subsidiary of such Affiliate Transaction from
a financial point of view issued by an accounting, appraisal or investment
banking firm of national standing. Notwithstanding the foregoing, the following
items shall not be deemed to be Affiliate Transactions: (i) transactions between
or among the Company and/or its Restricted Subsidiaries or between or among its
Restricted Subsidiaries, including the Incurrence of intercompany Indebtedness
permitted by Section 10.12; (ii) the payment of reasonable directors fees to
Persons who are not otherwise Affiliates of the Company or indemnification and
similar arrangements, consulting fees, employee salaries, bonuses, employment
agreements, compensation or employee benefit arrangements or incentive
arrangements with any officer, director or employee of the Company or any
Restricted Subsidiary (including benefits under the foregoing); (iii) Restricted
Payments made in compliance with Section 10.10; and (iv) loans or advances to
employees and
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reimbursement of actual out-of-pocket expenses incurred by officers, directors
and employees, in each case in the ordinary course of business in an amount not
to exceed $1,000,000.
10.15 LIMITATION ON LIENS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, Incur, assume or suffer to
exist any Lien of any kind on any asset now owned or hereafter acquired,
securing Indebtedness or trade payables, except Permitted Liens.
10.16 OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of
Securities will have the right to require the Company to repurchase all or any
part (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "CHANGE OF CONTROL OFFER")
at an offer price in cash equal to 101% of the aggregate principal amount
thereof plus accrued and unpaid interest thereon (the "CHANGE OF CONTROL
PURCHASE PRICE"), to the date of purchase (the "CHANGE OF CONTROL PAYMENT
DATE"); provided, however, that, if the Change of Control Payment Date is on or
after a Regular Record Date and on or before the related Interest Payment Date,
the Company shall pay the full amount of any accrued and unpaid interest to the
Person in whose name a Security is registered at the close of business on such
Regular Record Date, and no additional interest shall be payable to Holders who
validly tender Securities pursuant to the Change of Control Offer in respect of
such Interest Payment Date.
(b) Within fifteen Business Days following any Change of Control,
the Company shall mail a notice to each Holder, with a copy of such notice to
the Trustee. The notice, which shall govern the terms of the Change of Control
Offer, shall state, among other things:
(i) that a Change of Control has occurred and a Change of
Control Offer is being made as provided for herein that each Holder has
the right to require the Company to purchase such Holder's Securities
at the Change of Control Purchase Price, and that, although Holders are
not required to tender their Securities, all Securities that are
validly tendered shall be accepted for payment;
(ii) the circumstances giving rise to the Change of
Control;
(iii) the Change of Control Purchase Price and the Change
of Control Payment Date, which will be no earlier than 20 Business Days
and no later than 35 Business Days after the date such notice is
mailed;
(iv) that any Security accepted for payment pursuant to
the Change of Control Offer (and duly paid for on the Change of Control
Payment Date) shall cease to accrue interest, after the Change of
Control Payment Date;
(v) that any Securities (or portions thereof) not validly
tendered shall continue to accrue interest;
(vi) that any Holder electing to have a Security purchased
pursuant to any Change of Control Offer shall be required to surrender
the Security, with the form
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entitled "Option of Holder to Elect Purchase" on the reverse of the
Security completed, or transfer by book entry transfer, to the Company,
a depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three (3) Business Days before
the Change of Control Payment Date;
(vii) that Holders shall be entitled to withdraw their
election if the Company, the depositary or the Paying Agent, as the
case may be, receives, not later than the close of business on the
second Business Day preceding the Change of Control Payment Date, a
telegram, facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Security the Holder delivered
for purchase and a statement that such Holder is withdrawing his
election to have such Security purchased;
(viii) the instructions and any other information necessary
to enable Holders to tender their Securities (or portions thereof) and
have such Securities (or portions thereof) purchased pursuant to the
Change of Control Offer; and
(ix) that Holders whose Securities are being purchased
only in part will be issued new Securities equal in principal amount to
the unpurchased portion of the Securities; provided that such new Note
must be equal to $1,000 principal amount and integral multiples
thereof.
(c) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Securities or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with the
Paying Agent an amount equal to the Change of Control Payment in respect of all
Securities or portions thereof so tendered and (3) deliver or cause to be
delivered to the Trustee the Securities so accepted together with an Officers'
Certificate stating the aggregate principal amount of Securities or portions
thereof being repurchased by the Company. The Paying Agent shall promptly (but
in any case not later than five days after the Change of Control Payment Date)
mail to each Holder of Securities so tendered the Change of Control Payment for
such Securities, and the Trustee shall promptly authenticate and mail (or cause
to be transferred by book entry) to each Holder a new Note equal in principal
amount to any unrepurchased portion of the Securities surrendered, if any;
provided that each such new Security shall be in a principal amount of $1,000 or
an integral multiple thereof.
(d) Upon surrender and cancellation of a Security that is
purchased in part pursuant to the Change of Control Offer, the Company shall
promptly issue and the Trustee shall authenticate and mail (or cause to be
transferred by book entry) to the surrendering Holder of such Security, a new
Security equal in principal amount to the unpurchased portion of such
surrendered Security; provided that each such new Security shall be in a
principal amount of $1,000 or an integral multiple thereof. Upon surrender of a
Global Security that is purchased in part pursuant to a Change of Control Offer,
the Paying Agent shall forward such Global Security to the Trustee who shall
make a notation on Schedule A thereof to reduce the principal amount of such
Global Note to an amount equal to the unpurchased portion of such Global
Security. The Company shall publicly announce the results of the Change of
Control Offer on the Change of Control Payment Date. For purposes of this
Section 10.16, the Trustee shall act as the Paying Agent.
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(e) Notwithstanding anything to the contrary in this Section
10.16, the Company shall not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Section 10.16 hereof and purchases all Securities validly tendered and
not withdrawn under such Change of Control Offer.
(f) The Company shall comply with the requirements of Rules 13e-4
and 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations are applicable in connection
with the repurchase of the Securities as a result of a Change of Control. To the
extent that the provisions of any securities laws or regulations conflict with
this Section 10.16, the Company shall comply with the applicable securities laws
and regulations and shall not be deemed to have breached its obligations under
this Section 10.16 by virtue thereof.
10.17 PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Securities unless such consideration is offered to be
paid or is paid to all Holders of the Securities that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to such
consent, waiver or agreement.
10.18 LIMITATION ON SALE/LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, enter into any Sale/Leaseback Transaction; provided that the
Company or any Restricted Subsidiary may enter into a Sale/Leaseback Transaction
if (i) the Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Sale/Leaseback Transaction at least equal to
the fair market value (as determined by a majority of the members of the Board
of Directors that are not Officers or employees of the Parent or any of its
Subsidiaries) of the property subject to such transaction; (ii) the Company or
such Restricted Subsidiary could have Incurred Indebtedness in an amount equal
to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction
pursuant to Section 10.12; (iii) the Company or such Restricted Subsidiary would
be permitted to create a Lien on the property subject to such Sale/Leaseback
Transaction; (iii) the Sale/Leaseback Transaction is treated as an Asset Sale
and all of the conditions of Section 10.13 are satisfied with respect to such
Sale/Leaseback Transaction, treating all of the consideration received in such
Sale/Leaseback Transaction as Net Proceeds for the purposes of Section 10.13.
10.19 LIMITATION ON ISSUANCE OF EQUITY INTERESTS OF RESTRICTED
SUBSIDIARIES.
The Company will not sell, and will not permit any Restricted
Subsidiary, directly or indirectly, to issue or sell, any shares of Equity
Interests of a Restricted Subsidiary (including options, warrants, or other
rights to purchase shares of such Equity Interests) except: (i) to the Company
or a wholly owned subsidiary of the Company; (ii) issuances of
director's qualifying shares or sales to foreign nationals of shares of Equity
Interests of foreign Restricted
79
Subsidiaries, to the extent required by applicable law; or (iii) issuances or
sales of common stock of a Restricted Subsidiary so long as immediately giving
effect to the issuance or sale, the Restricted Subsidiary would continue to be a
Restricted Subsidiary, provided that the proceeds therefrom shall be treated as
proceeds from an Asset Sale in accordance with Section 10.13.
10.20 ADDITIONAL GUARANTEES.
If any Guarantor shall acquire or create a Subsidiary organized in the
United States, or a foreign Subsidiary to the extent that no adverse tax
consequences to the Guarantor would result from the issuance of a Guarantee by
such foreign subsidiary, after the date of this Indenture, then such newly
acquired or created Subsidiary shall become a Guarantor and execute a
supplemental indenture and deliver an Opinion of Counsel, in accordance with the
terms of this Indenture; provided that all Subsidiaries that have properly been
designated as Unrestricted Subsidiaries in accordance with this Indenture (i)
shall not be subject to the requirements of this Section 10.20 and (ii) shall be
released from all Obligations under any Guarantee, in each case for so long as
they continue to constitute Unrestricted Subsidiaries.
10.21 PERFECTION OF SECURITY INTERESTS.
The Company shall preserve the Liens granted under the Security
Documents and undertake all actions which are required by applicable law that
are necessary or appropriate in the reasonable judgment of the Trustee or the
Collateral Agent to (a) maintain the Liens of the Collateral Agent in the
Collateral in full force and effect at all times (including the priority
thereof), and (b) preserve and protect the Collateral and protect and enforce
the Company's rights and title and the rights of the Collateral Agent to the
Collateral, including, without limitation, the making or delivery of all filings
and recordations, the payment of fees and other charges and the issuance of
supplemental documentation for such purposes.
10.22 EVENTS OF LOSS TO COLLATERAL.
In the event of an Event of Loss with respect to any Collateral, the
Company or the affected Guarantor, as the case may be will apply the Net Loss
Proceeds from such Event of Loss within 90 days after receipt, at its option:
(i) to the rebuilding, repair, replacement or construction of improvements to
the affected property (the "SUBJECT PROPERTY"); or (ii) to make capital
expenditures with respect to the Collateral or to acquire properties or assets
that will constitute Collateral and be used or useful in the business of the
Company or any of its Restricted Subsidiaries; provided that if during such
90-day period the Company or a Restricted Subsidiary enters into a definitive
agreement committing it to apply such Net Loss Proceeds in accordance with the
requirements of clause (i) or (ii) or if the application of such Net Loss
Proceeds is part of a project authorized by the Board of Directors in good faith
that will take longer than 90 days (but in no event longer than 270 days in the
aggregate) to complete, and such project has begun, such 90-day period will be
extended with respect to the amount of Net Loss Proceeds so committed until
required to be paid in accordance with such agreement (or, if earlier, until
termination of such agreement) or until completion of such project, as the case
may be. Pending the final application of any Net Loss Proceeds, the Company or
any Restricted Subsidiary shall deposit such Net Loss Proceeds in the Collateral
Account.
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Any Net Loss Proceeds from an Event of Loss that are not applied or
invested as provided in the first sentence of the preceding paragraph will be
deemed to constitute "EXCESS LOSS PROCEEDS". When the aggregate amount of Excess
Loss Proceeds exceeds $5,000,000, the Company will make an offer to all Holders
of the Securities (a "LOSS PROCEEDS OFFER") to purchase the maximum principal
amount of Securities that may be purchased out of such Excess Loss Proceeds, at
an offer price in cash in an amount equal to 100% of their principal amount plus
accrued and unpaid interest to the date of purchase (subject to the right of
Holders of record on a record date to receive interest on the relevant Interest
Payment Date in accordance with the procedures set forth in this Indenture).
If the aggregate principal amount of Securities surrendered by Holdings
exceeds the Excess Loss Proceeds to be used to purchase Securities, the Trustee
shall select the Securities to be repurchased on a pro rata basis.
Notwithstanding anything to the contrary in the foregoing, the Company may
commence a Loss Proceeds Offer prior to the expiration of 270 days after the
occurrence of an Event of Loss. If any Excess Loss Proceeds remain after the
consummation of any Loss Proceeds Offer, the Company may use those Excess Loss
Proceeds for any purpose not otherwise prohibited by this Indenture.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
11.1 CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Parent, at the Conversion
Price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall expire at the close of business on ______, 2009.
The Conversion Price at which shares of Common Stock shall be delivered
upon conversion shall be initially $9.340033 per share of Common Stock. The
Conversion Price shall be adjusted in certain instances as provided in Section
11.4.
11.2 EXERCISE OF CONVERSION PRIVILEGE.
To exercise the conversion privilege, the Holder of any Security to be
converted shall surrender such Security, duly endorsed or assigned to the Parent
or in blank, at any office or agency of the Parent maintained for that purpose
pursuant to Section 10.2, accompanied by written notice to the Parent at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof
to be converted. Securities surrendered for conversion during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except for Securities whose Maturity is prior to such Interest Payment Date) be
accompanied by payment in same day funds or other funds acceptable to the Parent
of an amount equal to the interest payable on such Interest Payment Date
81
on the principal amount of Securities being surrendered for conversion. Except
as provided in the preceding sentence and subject to the fourth paragraph of
Section 3.7, no payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or
on account of any dividends on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Parent
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 11.3.
In the case of any Security which is converted in part only, upon such
conversion the Parent shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Parent, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
11.3 FRACTIONAL SHARES.
The Parent shall not be required upon the conversion of any Security to
issue any fractional shares, but may, in lieu of issuing any fractional share of
Common Stock which would otherwise be issuable upon conversion of any Security
or Securities (or specified portions thereof), pay a cash adjustment in respect
of such fraction in any amount equal to the same fraction of the Current Market
Price per share on the day of conversion. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof) so surrendered. The Holders, by their acceptance of the Securities,
expressly waive their right to receive any fraction of a share of Common Stock
or a stock certificate representing a fraction of a share of Common Stock if
such amount of cash is paid in lieu thereof.
11.4 ADJUSTMENT OF CONVERSION PRICE.
In order to prevent dilution of the rights granted under the Securities
and to grant the Holders certain additional rights, the Conversion Price shall
be subject to adjustment from time to time as provided in this Section.
(a) Subdivisions and Combinations. In the event the Parent shall,
at any time or from time to time after the Original Issue Date while the
Securities remain Outstanding, effect a subdivision (by any stock split or
otherwise) of the outstanding shares of Common Stock into a greater number of
shares of Common Stock (other than (x) a subdivision upon a merger or
consolidation or sale to which Section 11.10 applies or (y) a stock split
effected by means of a stock dividend or distribution to which Section 11.4(b)
applies), then and in each such event the
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Conversion Price in effect at the opening of business on the day after the date
upon which such subdivision becomes effective shall be proportionately
decreased. Conversely, if the Parent shall, at any time or from time to time
after the Original Issue Date while the Securities remain Outstanding, effect a
combination (by any reverse stock split or otherwise) of the outstanding shares
of Common Stock into a smaller number of shares of Common Stock (other than a
combination upon a merger or consolidation or sale to which Section 11.10
applies), then and in each such event the Conversion Price in effect at the
opening of business on the day after the date upon which such combination
becomes effective shall be proportionately increased. Any adjustment under this
Section 11.4(a) shall become effective immediately after the opening of business
on the day after the date upon which the subdivision or combination becomes
effective.
(b) Common Stock Dividends. In the event the Parent shall, at any
time or from time to time after the Original Issue Date while the Securities
remain Outstanding, make or issue to the holders of its Common Stock a dividend
or distribution payable in, or otherwise make or issue a dividend or other
distribution on any class of its Equity Interests payable in, shares of Common
Stock (other than a dividend or distribution upon a merger or consolidation or
sale to which Section 11.10 applies), then and in each such event the Conversion
Price in effect at the opening of business on the day after the date for the
determination of the holders of shares of Common Stock entitled to receive such
dividend or distribution shall be decreased by multiplying such Conversion Price
by a fraction (not to be greater than 1):
(i) the numerator of which shall be the total number of shares of
Common Stock issued and outstanding at the close of business on such
date for determination; and
(ii) the denominator of which shall be the total number of shares
of Common Stock issued and outstanding at the close of business on such
date for determination plus the number of shares of Common Stock
issuable in payment of such dividend or distribution.
Any adjustment under this Section 11.4(b) shall, subject to Section
11.4(h)(iv), become effective immediately after the opening of business
on the day after the date for the determination of the holders of
shares of Common Stock entitled to receive such dividend or
distribution.
(c) Reclassifications. A reclassification of the Common Stock
(other than any such reclassification in connection with a merger or
consolidation or sale to which Section 11.10 applies) into shares of Common
Stock and shares of any other class of stock shall be deemed:
(i) a distribution by the Parent to the holders of its Common
Stock of such shares of such other class of stock for the purposes and
within the meaning of Section 11.4(d) (and the effective date of such
reclassification shall be deemed to be "the date for the determination
of the holders of Common Stock entitled to receive such dividend or
distribution" for the purposes and within the meaning of Section
11.4(d)); and
(ii) if the outstanding shares of Common Stock shall be changed
into a larger or smaller number of shares of Common Stock as a part of
such reclassification, such change shall be deemed a subdivision or
combination, as the case may be, of the outstanding shares of Common
Stock for the purposes and within the meaning of
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Section 11.4(a) (and the effective date of such reclassification shall
be deemed to be "the date upon which such subdivision becomes
effective" or "the date upon which such combination becomes effective",
as applicable, for the purposes and within the meaning of Section
11.4(a)).
(d) Property Dividends. In the event the Parent shall, at any time
or from time to time after the Original Issue Date while the Securities remain
Outstanding, make or issue a dividend or distribution to holders of Common Stock
a Property Dividend (other than (x) a Receivable Dividend, a Received Dividend
or an Excluded Dividend or (y) any dividend or distribution of any rights or
warrants referred to in Section 11.4(f)), then and in each such event the
Conversion Price in effect immediately prior to the close of business on the
date for the determination of the holders of Common Stock entitled to receive
such dividend or distribution shall be decreased by multiplying such Conversion
Price by a fraction (not to be greater than 1):
(i) the numerator of which shall be the Current Market Price per
share of Common Stock on such date for determination minus the portion
applicable to one share of Common Stock of the fair market value (as
determined in good faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution filed with the
Trustee) of such Property Dividend so distributed; and
(ii) the denominator of which shall be such Current Market Price
per share of Common Stock.
Any adjustment under this Section 11.4(d) shall, subject to Section
11.4(h)(iv), become effective immediately prior to the opening of
business on the day after the date for the determination of the holders
of Common Stock entitled to receive such dividend or distribution. If
the Board of Directors determines the fair market value of any Property
Dividend for purposes of this Section 11.4(d) by reference to the
actual or when issued trading market for any securities comprising such
Property Dividend, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price
per share of Common Stock.
(e) Self-Tender Offers. In the event, at any time or from time to
time after the Original Issue Date while the Securities remain Outstanding, a
Parent Offer, other than a Excluded Parent Offer, shall expire, then and in each
such event the Conversion Price in effect immediately prior to the close of
business on the date of the last time (the "EXPIRATION TIME") tenders could have
been made pursuant to such Parent Offer shall be decreased by multiplying such
Conversion Price by a fraction (not to be greater than 1):
(i) the numerator of which shall be equal to (A) the product of
(1) the Current Market Price per share of the Common Stock on the date
of the Expiration Time and (2) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time less
(B) the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and evidenced by a
Board Resolution filed with the Trustee) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the Parent Offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares
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deemed so accepted, up to any maximum amount provided for in connection
with such Parent Offer, being referred to as the "PURCHASED SHARES");
and
(ii) the denominator of which shall be equal to the product of (A)
the Current Market Price per share of the Common Stock on the date of
the Expiration Time and (B) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time less
the number of Purchased Shares.
Any adjustment under this Section 11.4(e) shall become effective
immediately prior to the opening of business on the day after the
Expiration Time.
(f) Distributions of Warrants. In the event the Parent shall, at
any time or from time to time after the Original Issue Date while the Securities
remain Outstanding, make or issue any warrants or other rights to subscribe for
or purchase any shares of Common Stock (other than (x) a Received Dividend or a
Receivable Dividend or (y) a distribution of such warrants or rights upon a
merger or consolidation or sale to which Section 11.10 applies), which are
exercisable for a period of not more than 60 days from the issuance thereof, and
the consideration per share for which shares of Common Stock may at any time
thereafter be issuable pursuant to such warrants or other rights shall be less
than the Current Market Price per share of Common Stock on the date of issuance,
then and in each such event the Conversion Price at the opening of business on
the day after such date for determination shall be decreased by multiplying such
Conversion Price by a fraction (not to be greater than 1):
(i) the numerator of which shall be the number of shares of Common
Stock Outstanding at the close of business on such date for
determination plus the number of shares of Common Stock that the
minimum consideration received and receivable by the Parent for the
issuance of such maximum number of shares of Common Stock pursuant to
the terms of such warrants or other rights would purchase at such
Current Market Price; and
(ii) the denominator of which shall be the number of shares of
Common Stock Outstanding at the close of business on such date for
determination plus the maximum number of shares of Common Stock
issuable pursuant to all such warrants or other rights.
Any adjustment under this Section 11.4(f) shall, subject to Section
11.4(h)(iv), become effectively immediately after the opening of
business on the day after the date for the determination of the holders
of shares of Common Stock entitled to receive such dividend or
distribution.
Rights or warrants issued by the Parent to all holders of its Common
Stock entitling the holders thereof to subscribe for or purchase shares
of Common Stock, which rights or warrants (A) are deemed to be
transferred with such shares of Common Stock, (B) are not exercisable
and (C) are also issued in respect of future issuances of Common Stock,
in each case in clauses (A) through (C) until the occurrence of a
specified event or events ("TRIGGER EVENT"), shall for purposes of this
Section 11.4(f) and Section 11.4(d) not be deemed distributed until the
occurrence of the earliest Trigger Event.
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(g) Superseding Adjustment. In the event at any time after any
adjustment of the number of shares of Common Stock into which each Security is
convertible shall have been made pursuant to Section 11.4(f) on the basis of the
distribution of warrants or other rights or after any new adjustment of the
number of shares of Common Stock into which each Security is convertible shall
have been made pursuant to this Section 11.4(g), such warrants or rights shall
expire, and all or a portion of such warrants or rights shall not have been
exercised, then, and in each such case, upon the election of the Parent by
written notice to the Trustee, such previous adjustment in respect of such
warrants or rights which have expired without exercise shall be rescinded and
annulled as to any then Outstanding Securities, and the shares of Common Stock
that were deemed for purposes of the computations set forth in Section 11.4(f)
to have been issued by virtue of such adjustment in respect of such warrants or
rights shall no longer be deemed to have been issued.
(h) Other Provisions Applicable to Adjustments. The following
provisions shall be applicable to the making of adjustments to the Conversion
Price under this Section 11.4:
(i) Treasury Stock. The dividend or distribution of any issued
shares of Common Stock owned or held by or for the account of the
Parent shall be deemed a dividend or distribution of shares of Common
Stock for purposes of this Section 11.4. The Parent shall not make or
issue any dividend or distribution on shares of Common Stock held in
the treasury of the Parent. For the purposes of this Section 11.4, the
number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Parent but shall include
shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(ii) When Adjustments Are to be Made. The adjustments required by
Sections 11.4(a), 11.4(b), 11.4(c), 11.4(d), 11.4(e) and 11.4(f) shall
be made whenever and as often as any specified event requiring an
adjustment shall occur, except that no adjustment of the Conversion
Price that would otherwise be required shall be made unless and until
such adjustment either by itself or with other adjustments not
previously made increases or decreases the Conversion Price immediately
prior to the making of such adjustment by at least 1%. Any adjustment
representing a change of less than such minimum amount (except as
aforesaid) shall be carried forward and made as soon as such
adjustment, together with other adjustments required by Sections
11.4(a), 11.4(b), 11.4(c), 11.4(d), 11.4(e) and 11.4(f) and not
previously made, would result in such minimum adjustment.
(iii) Fractional Interests. In computing adjustments under this
Article, fractional interests in Common Stock shall be taken into
account to the nearest one-thousandth of a share.
(iv) Deferral Of Issuance Upon Conversion. In any case in which
Sections 11.4(b), 11.4(d) or 11.4(f) shall require that a decrease in
the Conversion Price be made effective prior to the occurrence of a
specified event and any Security is converted after the time at which
the adjustment became effective but prior to the occurrence of such
specified event, the Parent may elect to defer until the occurrence of
such specified event the corresponding reduction in the Conversion
Price.
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(i) Compliance with Governmental Requirements. Before taking any
action that would cause an adjustment reducing the Conversion Price below the
then par value of any of the shares of Common Stock into which the Securities
are convertible, the Parent will take any corporate action that may be necessary
in order that the Parent may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Conversion Price.
(j) Optional Tax Adjustment. The Parent may at its option, at any
time while the Securities remain Outstanding, decrease the Conversion Price, in
addition to those changes required by Sections 11.4(a), 11.4(b), 11.4(c),
11.4(d), 11.4(e) or 11.4(f), as deemed advisable by the Board of Directors, in
order that any event treated for Federal income tax purposes as a dividend of
stock or stock rights shall not be taxable to the recipients.
(k) Statement on Securities. Irrespective of any adjustment in the
kind of shares into which the Securities are convertible, Securities theretofore
or thereafter issued may continue to express the same price and kind of shares
initially issuable pursuant to this Agreement.
(l) Certain Actions During Specified Period. During any Specified
Period, the Company shall not combine its outstanding shares of Common Stock
into a smaller number of shares of Common Stock, effect a reclassification of
its Common Stock or effect any Transaction.
(m) Certain Actions Respecting Received Cash Dividends. If the
Parent shall have given notice to the Trustee of its intention to treat a
distribution as a Received Dividend hereunder, the Parent shall not permit the
date for the determination of holders of shares of Common Stock entitled to
receive any other dividend or distribution referred to in Sections 11.4(b) or
11.4(d) or to receive any rights, options or warrants referred to in Section
11.4(f), the date of any Expiration Time referred to in Section 11.4(e), the
effective date of any subdivision or combination referred to in Section 11.4(a)
or the date of consummation of any Transaction to be the same date as the date
which is, or is the day before, the date for determination of holders of Common
Stock entitled to receive such Received Dividend.
11.5 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Upon the occurrence of each adjustment of the Conversion Price pursuant
to this Section, the Parent at its expense shall promptly:
(i) compute such adjustment in accordance with the terms
hereof;
(ii) after such adjustment becomes effective, deliver to
all Holders in accordance with Section 1.6 a notice setting forth such
adjustment (including the kind and amount of securities, cash or other
property for which the Securities shall be convertible and the
Conversion Price) and showing in detail the facts upon which such
adjustment is based; and
(iii) deliver to the Trustee and file at each office or
agency maintained for the purpose of conversion of the Securities
pursuant to Section 10.2 a certificate of the
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Treasurer of the Parent setting forth the Conversion Price and the
number of shares of Common Stock into which each Security is
convertible after such adjustment and setting forth a brief statement
of the facts requiring such adjustment and the computation by which
such adjustment was made (including a description of the basis on which
the Current Market Price of the Common Stock or the fair market value
of any evidences of indebtedness, shares of Equity Interests,
securities, cash or other assets or consideration used in the
computation was determined). As provided in Section 6.3, the Trustee
shall be entitled to rely on such certificate and shall be under no
duty or responsibility with respect to any such certificate, except to
exhibit the same from time to time to any Holder desiring an inspection
thereof during reasonable business hours.
11.6 NOTICE OF CERTAIN CORPORATE ACTIONS.
In the event the Parent shall propose:
(i) to make or issue any dividend or other distribution
to holders of Common Stock of any stock, other securities, cash, assets
or property or of any rights to subscribe for or purchase any shares of
stock of any class or any other securities, rights or options; or
(ii) to effect any Transaction; or
(iii) to effect the voluntary or involuntary dissolution,
liquidation or winding-up of the Parent; or
(iv) to effect any reclassification of its Common Stock;
or
(v) to commence a Parent Offer for all or a portion of
the outstanding shares of Common Stock (or shall amend any such Parent
Offer),
then, and in each such case, the Parent shall cause to be filed with the Trustee
and shall give to each Holder of a Security, in accordance with Section 1.6, a
notice of such proposed action. Such notice shall specify (x) the date on which
a record is to be taken for the purposes of such dividend or distribution; (y)
the date on which such reclassification, Transaction, liquidation, dissolution
or winding up is expected to become effective and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property deliverable
upon such reclassification, Transaction, liquidation, dissolution or winding up;
or (z) the date on which such tender offer commenced, the date on which such
tender offer is scheduled to expire unless extended, the consideration offered
and the other material terms thereof (or the material terms of any amendment
thereto). Such notice shall be given, in the case of any action covered by
clause (i) above, at least 10 days prior to the record date for determining
holders of the Common Stock for purposes of much action or, in the case of any
action covered by clauses (ii) through (v) above, at least 20 days prior to the
applicable effective or expiration date specified above or, in any such case,
prior to such earlier time as notice thereof shall be required to be given
pursuant to Rule l0b-17 under the Exchange Act.
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If at any time the Parent shall cancel any of the proposed transactions
for which notice has been given under this Section prior to the consummation
thereof, the Parent shall give each Holder prompt notice of such cancellation in
accordance with Section 1.6 hereof.
11.7 RESERVATION AND AUTHORIZATION OF COMMON STOCK.
The Parent covenants that, so long as any Securities remain
Outstanding, the Parent will at all times reserve and keep available, from its
authorized and unissued Common Stock solely for issuance and delivery upon the
conversion of the Securities and free of preemptive rights, such number of
shares of Common Stock and other securities, cash or property as from time to
time shall be issuable upon the conversion in full of all Outstanding
Securities. The Parent further covenants that it shall, from time to time, take
all steps necessary to increase the authorized number of shares of its Common
Stock if at any time the authorized number of shares of Common Stock remaining
unissued would otherwise be insufficient to allow delivery of all the shares of
Common Stock then deliverable upon the conversion in full of all Outstanding
Securities. The Parent covenants that all shares of Common Stock issuable upon
conversion of the Securities will, upon issuance, be duly and validly issued,
fully paid and nonassessable and will be free of restrictions on transfer and
will be free from all taxes, liens and charges in respect of the issue thereof
(other than taxes in respect of any transfer occurring contemporaneously or
otherwise specified herein). The Parent shall take all such actions as may be
necessary to ensure that all such shares of Common Stock may be so issued
without violation of any applicable law or governmental regulation or any
requirements of any domestic stock exchange upon which shares of Common Stock
may be listed (except for official notice of issuance which shall be immediately
delivered by the Parent upon each such issuance). The Parent covenants that all
shares of Common Stock will, at all times that Securities are convertible, be
duly approved for listing subject to official notice of issuance on each
securities exchange, if any, on which the Common Stock is then listed. The
Parent covenants that the stock certificates issued to evidence any shares of
Common Stock issued upon conversion of Securities will comply with the Delaware
General Corporation Law and any other applicable law.
The Parent hereby authorizes and directs its current and future
transfer agents for the Common Stock at all times to reserve stock certificates
for such number of authorized shares as shall be requisite for such purpose. The
Trustee is hereby authorized to requisition from time to time from any such
transfer agents stock certificates required to honor Outstanding Securities upon
conversion thereof in accordance with the terms of this Indenture, and the
Parent hereby authorizes and directs such transfer agents to comply with all
such requests of the Trustee. The Parent will supply such transfer agents with
duly executed stock certificates for such purposes.
11.8 TAXES ON CONVERSION.
The Parent shall pay any and all taxes (other than income taxes) that
may be payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Parent shall not be required,
however, to pay any tax or other charge imposed in respect of any transfer
involved in the issue and delivery of any certificates for shares of Common
Stock or payment of cash or other property to any Person other than the Holder
of the Security surrendered upon conversion, and in case of such transfer or
payment, the Trustee and the Parent shall not be required to issue or deliver
any certificate or pay any cash until (a) such
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tax or charge has been paid or an amount sufficient for the payment thereof has
been delivered to the Trustee or the Parent or (b) it has been established to
the Parent's satisfaction that any such tax or other charge that is or may
become due has been paid.
11.9 CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.9.
11.10 CHANGES IN COMMON STOCK.
In case at any time or from time to time after the Original Issue Date
while the Securities remain Outstanding, the Parent shall be a party to or shall
otherwise engage in any transaction or series of related transactions
constituting:
(i) a merger of the Parent into, a consolidation of the
Parent with, or a sale of all or substantially all of the Parent's
assets to, any other Person (a "NON-SURVIVING TRANSACTION"), or
(ii) any merger of another Person into the Parent in which
the previously outstanding shares of Common Stock shall be cancelled,
reclassified or converted or changed into or exchanged for securities
of the Company or other property (including cash) or any combination of
the foregoing (a "SURVIVING TRANSACTION"; any Non-Surviving Transaction
or Surviving Transaction being herein called a "TRANSACTION"),
then, as a condition to the consummation of such Transaction, the Parent shall
(or, in the case of any Non-Surviving Transaction, the Company shall cause such
other Person to) execute and deliver to the Trustee a supplemental indenture
providing that: (x) so long as any Security remains Outstanding, on such terms
and subject to such conditions as shall be as nearly equivalent as may be
practicable to the provisions set forth in this Indenture, each Security, upon
the conversion thereof at any time on or after the consummation of such
Transaction, shall be convertible into, in lieu of the Common Stock issuable
upon such conversion prior to such consummation, only the securities or other
property ("SUBSTITUTED PROPERTY") that would have been receivable upon such
Transaction by a holder of the number of shares of Common Stock into which such
Security was convertible immediately prior to such Transaction, assuming such
holder of Common Stock: (A) is not a Person with which the Company consolidated
or into which the Company merged or which merged into the Company or to which
such sale or transfer was made, as the case may be ("CONSTITUENT PERSON"), or an
Affiliate of a Constituent Person; and (B) failed to convert his rights of
election, if any, as to the kind or amount of securities, cash and other
property receivable upon such Transaction (provided that if the kind or amount
of securities, cash and other property receivable upon such Transaction is not
the same for each share of Common Stock held immediately prior to such
Transaction by other than a Constituent Person or an Affiliate thereof and in
respect of which such rights of election shall not have been exercised
("NON-ELECTING SHARE"), then, for the purposes of this Section 11.10, the kind
and amount of securities, cash and other property receivable upon such
Transaction by each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares); and (y) the
rights and obligations of the Parent (or, in the event of a
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Non-Surviving Transaction, such other Person) and the Holders in respect of
Substituted Property shall be as nearly equivalent as may be practicable to the
rights and obligations of the Parent and Holders in respect of Common Stock
hereunder. Such supplemental indenture shall provide for adjustments which, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section 11.10 shall similarly apply
to successive Transactions.
11.11 NO VOTING OR DIVIDEND RIGHTS.
Subject to the provisions of Sections 11.4 and 11.6 hereof and except
as may be specifically provided for herein, until the conversion of any
Security:
(i) no Holder of a Security shall have or exercise any
rights by virtue hereof as a holder of Common Stock of the Parent,
including, without limitation, the right to vote, to receive dividends
and other distributions or to receive notice of, or attend meetings of,
stockholders or any other proceedings of the Parent;
(ii) the consent of any such Holder shall not be required
with respect to any action or proceeding of the Parent;
(iii) except with respect to any Received Dividend, no such
Holder, by reason of the ownership or possession of a Security
representing the same, shall have any right to receive any cash
dividends, stock dividends, allotments or rights or other distributions
paid, allotted or distributed or distributable to the stockholders of
the Parent prior to, or for which the relevant record date preceded,
the date of the conversion of such Security; and
no such Holder shall have any right not expressly conferred by the Security held
by such Holder.
ARTICLE TWELVE
SECURITY ARRANGEMENTS
12.1 COLLATERAL AND SECURITY DOCUMENTS.
(i) To secure the due and punctual payment of principal
of and interest on the Securities by the Company when and as the same
shall be due and payable, whether on an Interest Payment Date, at
Stated Maturity, by acceleration, upon a Change of Control Offer or an
Asset Sale Offer, or otherwise, and interest on the overdue principal
of and interest (to the extent permitted by law), on the Securities and
performance of all other Obligations of the Company and the Guarantors
to the Holders of the Securities, the Trustee or the Collateral Agent
under this Indenture, the Securities, the Guarantees, and the Security
Documents, according to the terms hereunder or thereunder, each of the
Company and the Guarantors will enter into the Security Documents, to
create the security interests with respect to the Collateral. The
Trustee, the Collateral Agent, the Guarantors and the Company hereby
acknowledge and agree that the Collateral Agent holds the Collateral in
trust for the benefit of the Holders and the Trustee, among others,
pursuant to the terms of the Security Documents.
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(ii) Each Holder, by accepting a Note, agrees to all of
the terms and provisions of the Security Documents (including, without
limitation, the provisions providing for foreclosure and release of
Collateral) as the same may be in effect or may be amended from time to
time in accordance with the terms thereof and hereof, and authorizes
and directs the Trustee, in its capacity as Collateral Agent, to
perform their respective obligations and exercise their respective
rights under the Security Documents in accordance therewith; provided,
however, that if any provisions of the Security Documents limit,
qualify or conflict with the duties imposed by the provisions of the
Trust Indenture Act, the Trust Indenture Act will control.
(iii) As more fully set forth in, and subject to the
provisions of, the Security Documents, the Holders, and the Trustee and
the Collateral Agent on behalf of such Holders, will have rights in and
to the Collateral that are subject to the rights that have been or may
be created in favor of the holders of other Indebtedness and
obligations of the Company.
(iv) As among the Holders, the Collateral shall be held
for the equal and ratable benefit of the Holders without preference,
priority or distinction of any thereof over any other.
(v) With respect to the Trustee acting as Collateral
Agent, the Trustee (i) shall not be deemed to have breached its
fiduciary duty as Trustee to the Holders as a result of the performance
of its duties as Collateral Agent to the extent it acts in compliance
with the Security Documents and (ii) shall not be liable to the Holders
for any such action or inaction. The rights and interests created under
this Indenture shall be subject to the terms of the Security Documents.
(vi) The Company and each Guarantor will do or cause to be
done all such acts and things as may be necessary or proper, or as may
be required by the provisions of the Security Documents to which it is
a party, to assure and confirm to the Trustee, in its capacity as
Collateral Agent, the Liens on the Collateral contemplated by the
Security Documents to which it is a party, as from time to time
constituted, so as to render the same available for the security and
benefit of this Indenture and of the Securities and each Guarantee
secured thereby, as applicable, according to the intent and purposes
herein and therein expressed. The Company will take, as required by
applicable law, any and all reasonable actions required to cause the
Security Documents to create and maintain, as security for the
Obligations of the Company under this Indenture and the Securities and
the Security Documents to which it is a party, valid and enforceable,
perfected (except as expressly provided herein and therein) Liens in
and on all the Collateral in favor of the Collateral Agent for the
benefit of the Trustee and for the equal and ratable benefit of the
Holders of the Securities. Each Guarantor will take, as required by
applicable law, any and all reasonable actions required to cause the
Security Documents to which it is a party to create and maintain for
its Obligations under each Guarantee and the Security Document related
thereto, valid and enforceable, perfected (except as expressly provided
herein or therein), Liens in favor of the Collateral Agent for the
benefit of the Trustee and for the equal and ratable benefit of the
Holders of the Securities. Each of the Company and the Guarantors
shall, as promptly as practicable,
92
cause to be executed and delivered, filed and recorded all instruments
and do all acts and other things as may be required by law to perfect,
maintain and protect the Liens under the applicable Security Documents
to which it is party (except as otherwise expressly provided herein and
therein) to the extent contemplated by the Security Documents.
12.2 RELEASE OF COLLATERAL.
Collateral may be released from the Liens created by the Security
Documents at any time or from time to time, and the Security Documents may be
terminated, in accordance with the provisions of the Security Documents or in
accordance with this Indenture. In addition, upon the request of the Company
pursuant to an Officers' Certificate and Opinion of Counsel certifying that all
conditions precedent hereunder have been met, the Trustee will release
Collateral that is sold, conveyed, or disposed of in compliance with the
provisions of this Indenture. Upon receipt of such Officers' Certificate and
Opinion of Counsel, the Trustee will execute, deliver and acknowledge any
necessary or proper instruments of termination or release to evidence the
release of any Collateral permitted to be released pursuant to this Indenture or
the Security Documents. The release of any Collateral from the terms hereof
and/or of the Security Documents or the release of, in whole or in part, the
Liens created by the Security Documents, or the termination of the Security
Documents, will not be deemed to impair the Liens on the Collateral in
contravention of the provisions hereof if and to the extent that the Liens on
Collateral are released, or the Security Documents are terminated, pursuant to
this Indenture or the applicable Security Documents. The Trustee and each of the
Holders acknowledge that a release of Collateral or a Lien in accordance with
the terms hereof and/or of the Security Documents will not be deemed for any
purpose to be an impairment of the Lien on the Collateral in contravention of
the terms of this Indenture and/or the Security Documents. To the extent
applicable, the Company and each obligor on the Securities shall cause Section
314(d) of the Trust Indenture Act relating to the release of property or
securities from the Lien hereof and of the Security Documents to be complied
with. Any certificate or opinion required by Section 314(d) of the Trust
Indenture Act may be made by an officer of the Company, except in cases which
Section 314(d) of the Trust Indenture Act requires that such certificate or
opinion be made by an independent person. In releasing any Collateral pursuant
to the terms of the Indenture, or any Security Document, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, in addition
to the documents required by Section 13.4, an Officers' Certificate certifying
that such release is authorized or permitted by this Indenture and/or the
Security Documents and the Intercreditor Agreement and that all conditions
precedent, if any, to such release have been satisfied.
12.3 OPINIONS AS TO RECORDING.
(i) The Company and the Guarantors shall furnish to the
Trustee and the Collateral Agent promptly after the execution and
delivery of this Indenture an Opinion of Counsel either (i) stating
that in the opinion of such counsel all action has been taken with
respect to the recording, registering and filing of this Indenture,
financing statements or other instruments or otherwise necessary to
make effective the Liens intended to be created by the Security
Documents and reciting the details of such action, or (ii) stating
that, in the opinion of such counsel, no such action is necessary to
make such Liens effective. Such Opinion of Counsel shall cover the
necessity for recordings, registrations
93
and filings required in all relevant jurisdictions. Such Opinion of
Counsel may contain such qualifications, assumptions and limitations as
are customary for such opinions.
(ii) The Company and the Guarantors shall furnish to the
Trustee and the Collateral Agent within three months after each
anniversary of the Original Issue Date, an Opinion of Counsel, dated as
of such date, stating either that (i) in the opinion of such counsel,
all action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refilling of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance or otherwise as is necessary to
maintain the effectiveness of the Liens intended to be created by the
Security Documents and reciting the details of such action or (ii) in
the opinion of such counsel, no such action is necessary to maintain
the effectiveness of such Liens. Such opinion of counsel shall cover
the necessity of recordings, registrations, filing, re-recordings,
re-registrations and refilings in all relevant jurisdictions.
(iii) The Company and the Guarantors shall otherwise comply
with the provisions of Section 314(b) and, as applicable Sections
314(c), (d) and (e) of the Trust Indenture Act.
12.4 FURTHER ASSURANCES AND SECURITY.
The Company and the Guarantors will execute, acknowledge and deliver to
the Trustee, at the Company's and/or such Guarantor's expense, at any time and
from time to time such further assignments, transfers, assurances or other
instruments as may be reasonably required to effectuate the terms of this
Indenture and the Security Documents, and will at any time and from time to time
do or cause to be done all such acts and things as may be necessary or proper,
or as may be reasonably required by the Trustee, to assure and confirm to the
Trustee, in its capacity as Collateral Agent, the Liens in the Collateral
contemplated hereby and by the Security Documents, all to the extent
contemplated by the Security Documents, including, without limitation, for
purposes of any additional Guarantor pursuant to Section 10.20 hereof execution
and delivery of new Security Documents with respect to such additional
Guarantor.
12.5 AUTHORIZATION OF ACTIONS TO BE TAKEN BY COLLATERAL AGENT UNDER
THE SECURITY DOCUMENTS.
The Trustee, in its capacity as Collateral Agent, may, in its sole
discretion and without the consent of the Holders, on behalf of the Holders,
take all actions it deems necessary or appropriate in order to (a) enforce any
of the terms of the Security Documents and (b) collect and receive any and all
amounts payable in respect of the obligations of the Company and the Guarantors
hereunder. The Trustee, in its capacity as Collateral Agent, shall have the
power to institute and to maintain such suits and proceedings as such Person may
deem expedient to prevent any impairment of the Collateral by any acts that may
be unlawful or in violation of the Security Documents or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other government enactment,
rule or order that may be unconstitutional or otherwise invalid if the
enforcement of, or compliance with, such enactment,
94
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders or of the Trustee).
12.6 AUTHORIZATION OF RECEIPT OF FUNDS BY THE TRUSTEE UNDER THE
SECURITY DOCUMENTS.
The Trustee, in its capacity as Collateral Agent, is authorized to
receive any funds for the benefit of the Holders distributed under the Security
Documents, and to make further distributions of such funds to the Holders
according to the provisions of this Indenture and the Security Documents.
ARTICLE THIRTEEN
GUARANTEES
13.1 GUARANTEE.
Subject to this Article Thirteen, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Securities, the Security Documents or the Obligations of the Company
hereunder or thereunder, that: (a) the principal of and interest on the
Securities (including, without limitation, any interest that accrued after, or
would accrue but for, the commencement of a proceeding of the type described in
Section 5.1(i) and any fees, expenses and other amounts owing under this
Indenture will be duly and punctually paid in full when due, whether at Stated
Maturity, by acceleration, upon a Change of Control Offer, an Asset Sale Offer
or otherwise, and interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Securities and any other amounts due in respect
of the Securities and the Security Documents, and all other Obligations of the
Company, including the Company's Obligations to the Holders of the Securities
under this Indenture, the Securities and the Security Documents and Subsidiary
Guarantors under this Indenture, the Security Documents and the Guarantees,
whether now or hereafter existing, will be promptly paid in full or performed,
all strictly in accordance with the terms hereof and thereof; and (b) in case of
any extension of time of payment or renewal of any Securities or any of such
other Obligations, that same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same immediately
whether or not such failure to pay has become an Event of Default which could
cause acceleration pursuant to Section 5.1. An Event of Default under this
Indenture or the Securities shall constitute an Event of Default under each
Guarantee, and shall entitle the Holders to accelerate the Obligations of each
Guarantor hereunder in the same manner and to the same extent as the Obligations
of the Company. Each Guarantee is intended to be superior to or pari passu in
right of payment with all Indebtedness of the respective Guarantor and each
Guarantor's Obligations are independent of any Obligation of the Company or any
other Guarantor. Each Guarantor further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice or further assent from
such Guarantor, and that each
95
Guarantor will remain bound under this Article Thirteen notwithstanding any
extension or renewal of any Obligation.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities, this Indenture or the Security Documents, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenant that this Guarantee
shall not be discharged except by complete performance of the obligations
contained in the Securities and this Indenture. Each Guarantor waives notice of
any default under the Securities or the Obligations. The obligations of each
Guarantor hereunder shall not be affected by (a) the failure of any Holder,
Trustee or the Collateral Agent to assert any claim or demand or to enforce any
right or remedy against the Company or any other Person under this Indenture,
the Securities, or any other agreement or otherwise; (b) any extension or
renewal of any thereof; (c) any rescission, waiver, amendment or modification of
any of the terms or provisions of this Indenture, the Securities, the Security
Documents or any other agreement; (d) the release of any security held by any
Holder, the Collateral Agent or the Trustee for the Obligations or any of them;
(e) the failure of any Holder, the Trustee or the Collateral Agent to exercise
any right or remedy against any other guarantor of the Obligations; or (f) any
change in the ownership of such Guarantor.
Each Guarantor further agrees that its Guaranty herein constitutes a
guarantee of payment, performance and compliance when due (and not a guarantee
of collection) and waives any right to require that any resort be had by any
Holder or the Trustee to any security held for payment of the Obligations.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Until such time as the Securities and the other Obligations of the
Company guaranteed hereby have been satisfied in full, each Guarantor hereby
irrevocably waives any claim or other rights that it may now or hereafter
acquire against the Company or any other Guarantor that arise from the
existence, payment, performance or enforcement of such Guarantor's Obligations
under its Guarantee including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Holders, the Trustee or the Collateral
Agent against the Company or any other Guarantor or any security, whether or not
such claim, remedy or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take or receive from the
Issuer or any other Guarantor, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
claim, remedy or right. If any amount
96
shall be paid to such Guarantor in violation of the preceding sentence at any
time prior to the later of the payment in full of the Securities and all other
amounts payable under this Indenture and each Guarantee upon the Stated Maturity
of the Securities, such amount shall be held in trust for the benefit of the
Holders and the Trustee and shall forthwith be paid to the Trustee to be
credited and applied to the Securities and all other amounts payable under each
Guarantee, whether matured or unmatured, in accordance with the terms of this
Indenture, or to be held as security for any Obligations or other amounts
payable under any Guarantee thereafter arising.
Each Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 13.1 is knowingly made in contemplation of
such benefits. Each Guarantor further agrees that, as between it, on the one
hand, and the Holders and the Trustee, on the other hand, (x) subject to this
Article Thirteen, the maturity of the Obligations guaranteed hereby may be
accelerated as provided in Article Five for the purposes of each Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the Obligations guaranteed hereby, and (y) in the
event of any acceleration of such Obligations guaranteed hereby as provided in
Article Five, such Obligations (whether or not due and payable) shall, forthwith
become due and payable by the Guarantor for the purposes of each Guarantee.
A Guarantor that makes a distribution or payment under its Guarantee
shall be entitled to contribution from each other Guarantor in a pro rata amount
based on the Adjusted Net Assets of each such other Guarantor for all payments,
damages and expenses incurred by that Guarantor in discharging the Company's
obligations with respect to the Securities and this Indenture or any other
Guarantor with respect to its Guarantee, so long as the exercise of such right
does not impair the rights of the Holders of the Securities under the
Guarantees.
Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Section 13.1.
13.2 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Guarantee
of such Guarantor not constitute a fraudulent transfer or conveyance for
purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform
Fraudulent Transfer Act or any similar federal or state law to the extent
applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantors hereby irrevocably agree that the obligations of
such Guarantor under its Guarantee and this Article Thirteen shall be limited to
the maximum amount as will, after giving effect to such maximum amount and all
other contingent and fixed liabilities of such Guarantor that are relevant under
such laws, and after giving effect to any collections from, rights to receive
contribution from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article Thirteen,
result in the obligations of such Guarantor under its Guarantee not constituting
a fraudulent transfer or conveyance. Each Guarantor that makes a payment or
distribution under its Guarantee shall be entitled to a contribution from each
other Guarantor in a pro rata amount based on the Adjusted Net Assets of each
such other Guarantor.
97
13.3 SUCCESSORS AND ASSIGNS.
This Article Thirteen shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
conferred upon that party in this Indenture and in the Securities shall
automatically extend to and be vested in such transferee or assignee, all
subject to the terms and conditions of this Indenture.
13.4 NO WAIVER.
Neither a failure nor a delay on the part of either the Trustee or the
Holders in exercising any right, power or privilege under this Article Thirteen
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise of any right, power or privilege.
The rights, remedies and benefits of the Trustee and the Holders herein
expressly specified are cumulative and not exclusive of any other rights,
remedies or benefits which either may have under this Article Thirteen at law,
in equity, by statute or otherwise.
13.5 EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its Guarantee set forth in Section 13.1, each Guarantor
hereby agrees that a notation of such Guarantee substantially in the form
included in Exhibit C shall be endorsed by an Officer of such Guarantor on each
Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of such Guarantor by its Chairman, President or one
of its Vice Presidents. Further, the Company shall cause all future Guarantors
to execute a Supplemental Indenture substantially in the form of Exhibit D.
Each Guarantor hereby agrees that its Guarantee set forth in Section
13.1 shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
If an Officer whose signature is on this Indenture or on the Guarantee
no longer holds that office at the time the Trustee authenticates the Security
on which a Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
"thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
In the event that the Parent creates or acquires any new Subsidiaries
subsequent to the date of this Indenture, if required by Section 10.20 hereof
the Parent shall cause such Subsidiaries to execute supplemental indentures to
this Indenture and Guarantees in accordance with Section 10.20 hereof and this
Article Thirteen, to the extent applicable.
13.6 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
No Guarantor may consolidate with or merge with or into (whether or not
such Guarantor is the surviving Person), another corporation, Person or other
entity whether or not affiliated with such Guarantor unless (i) subject to the
provisions of the following paragraph, the Person formed
98
by or surviving any such consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor, pursuant to a supplemental
indenture in form and substance reasonably satisfactory to the Trustee, under
the Securities and the Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and (iii) except in the case
of a merger of a Guarantor with or into another Guarantor or a merger of a
Guarantor with or into the Company, the Company would be permitted by virtue of
the Company's pro forma Consolidated Leverage Ratio, immediately after giving
effect to such transaction, to Incur at least $1.00 of additional Indebtedness
pursuant to the Consolidated Leverage Ratio test set forth in Section 10.12
hereof.
13.7 RELEASES FOLLOWING SALE OF ASSETS OR EQUITY INTERESTS.
In the event of a sale or other disposition of all of the assets of any
Guarantor (other than to the Company, another Guarantor or a Restricted
Subsidiary), by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Equity Interests of any Guarantor (other than to, the
Company, another Guarantor or a Restricted Subsidiary), then such Guarantor (in
the event of a sale or other disposition, by way of such a merger, consolidation
or otherwise, of all of the Equity Interests of such Guarantor) or the entity
acquiring the property (in the event of a sale or other disposition of all of
the assets of such Guarantor) will be released and relieved of any obligations
under its Guarantee and any such acquiring entity will not be required to assume
any obligations of such Guarantor under the applicable Guarantee; provided that
such sale or other disposition complies with all applicable previsions of this
Indenture including, without limitation, Section 10.13 and this Article
Thirteen.
Any Guarantor not released from its obligations under its Guarantee
shall remain liable for the full amount of principal of and interest on the
Securities and for the other obligations of any Guarantor under this Indenture
as provided in this Article Thirteen.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and delivered as of the day and year first above written.
TEXAS PETROCHEMICALS LP
By:_____________________________________
Name:
Title:
[NAME OF PARENT]
By:_____________________________________
Name:
Title:
[OTHER GUARANTORS]
By:_____________________________________
Name:
Title:
[NAME OF TRUSTEE], AS TRUSTEE
By:_____________________________________
Name:
Title:
[Indenture Signature Page]
EXHIBIT C
FORM OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, unconditionally
guaranteed, to the extent set forth in the Indenture and subject to the
provisions in the Indenture dated as of ________, 2004 (the "Indenture") among
Texas Petrochemicals LP (the "Company"), the Guarantors listed on the signature
page thereto and____________________, as trustee (the "Trustee"), (a) the due
and punctual payment of the principal of and interest on the Securities (as
defined in the Indenture), whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on overdue principal, and, to the
extent permitted by law, interest, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee all in accordance
with the terms of the Indenture and (b) in case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that the
same will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise. The obligations of the Guarantors to the Holders of Notes and to
the Trustee pursuant to the Guarantee and the Indenture are expressly set forth
in Article 13 of the Indenture and reference is hereby made to the Indenture for
the precise terms of the Guarantee. Each Holder of a Security, by accepting the
same, (a) agrees to and shall be bound by such provisions, and (b) appoints the
Trustee attorney-in-fact of such Holder for such purpose; provided, however,
that the Indebtedness evidenced by this Guarantee shall cease to be so
subordinated and subject in right of payment upon any defeasance of this
Security in accordance with the provisions of the Indenture.
The terms of Article 13 of the Indenture are incorporated herein by
reference.
Dated: _______________
[ADDITIONAL GUARANTOR]
By:_____________________________________
Name:
Title:
[NAME OF PARENT]
By:_____________________________________
Name:
Title:
TEXAS PETROCHEMICALS LP
By:_____________________________________
Name:
Title:
C-1
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
_______________, among _______________ (the "Additional Guarantor"), a
subsidiary of [Name of Parent] (or its permitted successor), a Delaware
corporation (the "Parent"), TP Petrochemicals LP, a Texas limited partnership
(the "Company"), the other Guarantors (as defined in the Indenture referred to
herein) and ______________, as trustee under the indenture referred to below
(the "Trustee").
WITNESSETH
WHEREAS, the Company and the Guarantors have heretofore executed and
delivered to the Trustee an indenture (the "Indenture"), dated as of ________,
2004 providing for the issuance of an aggregate principal amount of up to
$60,000,000 of Senior Secured Convertible Notes due 2009 (the "Securities");
WHEREAS, the Indenture provides that under certain circumstances the
Additional Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Additional Guarantor shall unconditionally
guarantee all of the Company's Obligations under the Securities and the
Indenture on the terms and conditions set forth herein (the "Guarantee"); and
WHEREAS, pursuant to Article Nine of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Additional Guarantor and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Securities as follows:
1. Capitalized Terms. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. Agreement to Guarantee. The Additional Guarantor hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly
and severally Guarantee to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Securities or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Securities will
be promptly paid in full when due, whether at
maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest
on the Securities, if any, if lawful, and all other
obligations of the Company to the Holders or
D-1
the Trustee hereunder or thereunder will be promptly
paid in full or performed, all in accordance with the
terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Securities or any of such other
obligations, that same will be promptly paid in full
when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall
be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the
Securities or the Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the
Securities with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action
to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense
of a Guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require
a proceeding first against the Company, protest, notice and
all demands whatsoever.
(d) This Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities and
the Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any
custodian, Trustee, liquidator or other similar official
acting in relation to either the Company or the Guarantors,
any amount paid by either to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Additional Guarantor shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
Obligations guaranteed hereby until payment in full of all
Obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided
in Article Five of the Indenture for the purposes of this
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such obligations as provided in
Article Five of the Indenture, such Obligations (whether or
not due and payable) shall forthwith become due and payable by
the Guarantors for the purpose of this Guarantee.
D-2
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Guarantee.
3. Execution and Delivery. Each Additional Guarantor agrees that the
Guarantees shall remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of such Guarantee.
4. Additional Guarantor May Consolidate, Etc. on Certain Terms.
(a) The Additional Guarantor may not consolidate with or merge
with or into (whether or not such Guarantor is the surviving
Person) another corporation, Person or entity whether or not
affiliated with such Guarantor unless:
(i) subject to Article 13 of the Indenture, the Person
formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company)
unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the
Trustee, under the Securities, the Indenture and the
Guarantee on the terms set forth herein or therein;
(ii) immediately after giving effect to such transaction,
no Default or Event of Default exists; and
(iii) except in the case of a merger of a Guarantor with or
into another Guarantor or a merger of a Guarantor
with or into the Company, the Company would be
permitted by virtue of the Company's pro forma
Consolidated Leverage Ratio, immediately after giving
effect to such transaction, to Incur at least $1.00
of additional Indebtedness pursuant to the
Consolidated Leverage Ratio test set forth in Section
10.12 of the Indenture.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Guarantee
endorsed upon the Securities and the due and punctual
performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor
corporation shall succeed to and be substituted for the
Guarantor with the same effect as if it had been named herein
as a Guarantor. Such successor corporation thereupon may cause
to be signed any or all of the Guarantees to be endorsed upon
all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the
Trustee. All the Guarantees so issued shall in all respects
have the same legal rank and benefit under the Indenture as
the Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such
Guarantees had been issued at the date of the execution
hereof.
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(c) Except as set forth in Articles 8 and 10 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the Indenture or in any of the Securities shall prevent any
consolidation or merger of a Guarantor with or into the
Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Company or another
Guarantor.
5. Releases.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the
Capital Stock of any Guarantor (other than to the Company or
another Guarantor), then such Guarantor (in the event of a
sale or other disposition, by way of merger, consolidation or
otherwise, of all of the Capital Stock of such Guarantor
(other than to the Company or another Guarantor)) or the
entity acquiring the property (in the event of a sale or other
disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any Obligations
under its Guarantee and the Security Documents and any such
acquiring entity will not be required to assume any
Obligations of such Guarantor under the applicable Guarantee
and the Security Documents; provided that such sale or other
disposition complies with all applicable provisions of the
Indenture including, without limitation, Section 10.13 hereof.
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such
sale or other disposition was made by the Company in
accordance with the provisions of the Indenture, including
without limitation Section 10.13 of the Indenture, the Trustee
shall execute any documents reasonably required in order to
evidence the release of any Guarantor from its obligations
under its Guarantee.
(b) Any Guarantor not released from its Obligations under its
Guarantee shall remain liable for the full amount of principal
of and interest on the Securities and for the other
obligations of any Guarantor under the Indenture as provided
in Article 13 of the Indenture.
6. No Recourse Against Others. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Additional
Guarantor, as such, shall have any liability for any obligations of the Company
or any Guarantor under the Securities, any Guarantees, the Indenture or this
Supplemental Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder of the Securities by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against public
policy.
7. New York Law to Govern. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF
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LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
8. Counterparts. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
9. Effect of Headings. The Section headings herein are for convenience
only and shall not affect the construction hereof.
10. The Trustee. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Additional Guarantor and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: ____________, _____
[ADDITIONAL GUARANTOR]
By:_____________________________________
Name:
Title:
TEXAS PETROCHEMICALS LP
By:_____________________________________
Name:
Title:
_____________________, as Trustee
By:_____________________________________
Name:
Title:
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