EXHIBIT 4.1
===============================================================================
NEWPARK RESOURCES, INC.
and
GUARANTORS
INDENTURE
Dated as of December 17, 0000
XXXXX XXXXXX BANK & TRUST COMPANY
Trustee
$125,000,000
144A Senior Subordinated Notes
8 5/8% Senior Subordinated Notes due 2007, Series A
8 5/8% Senior Subordinated Notes due 2007, Series B
===============================================================================
Reconciliation and tie between Trust Indenture Act of 1939,
as amended, and Indenture, dated as of December 17, 1997
Trust Indenture Indenture
Act Section Section
---------------- ---------
(S) 310 (a)(1)........................................... 609
(a)(2)........................................... 609
(b).............................................. 607, 610
(S) 311 (a).............................................. 613
(S) 312 (a).............................................. 701
(b).............................................. 702
(c).............................................. 702
(S) 313 (a).............................................. 703
(c).............................................. 703, 704
(S) 314 (a).............................................. 704
(a)(4)........................................... 1020
(c)(1)........................................... 103
(c)(2)........................................... 103
(e).............................................. 103
(S) 315 (a).............................................. 601(b)
(b).............................................. 602
(c).............................................. 601(a)
(d).............................................. 601(c), 603
(e).............................................. 514
(S) 316 (a) (last sentence).............................. 101 ("Outstanding")
(a)(1)(A)........................................ 502, 512
(a)(1)(B)........................................ 513
(b).............................................. 508
(c).............................................. 105
(S) 317 (a)(1)........................................... 503
(a)(2)........................................... 504
(b).............................................. 1003
(S) 318 (a).............................................. 108
(c).............................................. 108
_____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
SECTION PAGE
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................. 1
Section 101. Definitions.................................................................... 1
Section 102. Other Definitions.............................................................. 18
Section 103. Compliance Certificates and Opinions........................................... 19
Section 104. Form of Documents Delivered to Trustee......................................... 20
Section 105. Acts of Holders................................................................ 21
Section 106. Notices, etc., to the Trustee, the Company and any Guarantor................... 22
Section 107. Notice to Holders; Waiver...................................................... 22
Section 108. Conflict with Trust Indenture Act.............................................. 22
Section 109. Effect of Headings and Table of Contents....................................... 23
Section 110. Successors and Assigns......................................................... 23
Section 111. Separability Clause............................................................ 23
Section 112. Benefits of Indenture.......................................................... 23
Section 113. GOVERNING LAW.................................................................. 23
Section 114. Legal Holidays................................................................. 23
Section 115. Independence of Covenants...................................................... 23
Section 116. Schedules and Exhibits......................................................... 24
Section 117. Counterparts................................................................... 24
Section 118. Rules by Trustee and Agents.................................................... 24
Section 119. No Adverse Interpretation of Other Agreements.................................. 24
Section 120. No Recourse Against Others..................................................... 24
Section 121. Agent for Service; Submission to Jurisdiction; Waiver of Immunities............ 24
ARTICLE TWO
SECURITY FORMS.................................................. 25
Section 201. Forms Generally................................................................ 25
Section 202. Form of Face of Security....................................................... 26
Section 203. Form of Reverse of Securities.................................................. 38
Section 204. Form of Trustee's Certificate of Authentication................................ 44
Section 205. Form of Guarantee of Each of the Guarantors.................................... 45
Section 206. Form of Option of Holder to Elect Purchase..................................... 46
ARTICLE THREE
THE SECURITIES.................................................. 47
Section 301. Title and Terms................................................................ 47
Section 302. Denominations.................................................................. 48
Section 303. Execution, Authentication, Delivery and Dating................................. 48
Section 304. Temporary Securities........................................................... 49
Section 305. Registration, Registration of Transfer and Exchange............................ 49
Section 306. Book-Entry Provisions for Global Securities.................................... 51
Section 307. Special Transfer Provisions.................................................... 52
i
SECTION PAGE
------- ----
Section 308. Mutilated, Destroyed, Lost and Stolen Securities............................... 54
Section 309. Payment of Interest; Interest Rights Preserved................................. 54
Section 310. CUSIP Numbers.................................................................. 55
Section 311. Persons Deemed Owners.......................................................... 56
Section 312. Cancellation................................................................... 56
Section 313. Computation of Interest........................................................ 56
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE........................................ 56
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance................... 56
Section 402. Defeasance and Discharge....................................................... 56
Section 403. Covenant Defeasance............................................................ 57
Section 404. Conditions to Defeasance or Covenant Defeasance................................ 57
Section 405. Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions................................................. 59
Section 406. Reinstatement.................................................................. 59
ARTICLE FIVE
REMEDIES..................................................... 59
Section 501. Events of Default.............................................................. 59
Section 502. Acceleration of Maturity; Rescission and Annulment............................. 61
Section 503. Other Remedies; Collection Suit by Trustee..................................... 62
Section 504. Trustee May File Proofs of Claim............................................... 63
Section 505. Trustee May Enforce Claims without Possession of Securities.................... 63
Section 506. Application of Money Collected................................................. 63
Section 507. Limitation on Suits............................................................ 64
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest...... 64
Section 509. Restoration of Rights and Remedies............................................. 65
Section 510. Rights and Remedies Cumulative................................................. 65
Section 511. Delay or Omission Not Waiver................................................... 65
Section 512. Control by Holders............................................................. 65
Section 513. Waiver of Past Defaults........................................................ 65
Section 514. Undertaking for Costs.......................................................... 66
Section 515. Remedies Subject to Applicable Law............................................. 66
ARTICLE SIX
THE TRUSTEE................................................... 66
Section 601. Duties of Trustee.............................................................. 66
Section 602. Notice of Defaults............................................................. 67
Section 603. Certain Rights of Trustee...................................................... 68
Section 604. Trustee Not Responsible for Recitals, Dispositions of Securities or Application
of Proceeds Thereof............................................................ 69
Section 605. Trustee and Agents May Hold Securities; Collections; etc....................... 69
Section 606. Money Held in Trust............................................................ 69
ii
SECTION PAGE
------- ----
Section 607. Compensation and Indemnification of Trustee and Its Prior Claim................ 69
Section 608. Conflicting Interests.......................................................... 70
Section 609. Trustee Eligibility............................................................ 70
Section 610. Resignation and Removal; Appointment of Successor Trustee...................... 70
Section 611. Acceptance of Appointment by Successor......................................... 71
Section 612. Merger, Conversion, Consolidation or Succession to Business.................... 72
Section 613. Preferential Collection of Claims Against Company.............................. 72
Section 614. Appointment of Authenticating Agent............................................ 72
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY................................ 75
Section 701. Company to Furnish Trustee Names and Addresses of Holders...................... 75
Section 702. Disclosure of Names and Addresses of Holders................................... 75
Section 703. Reports by Trustee............................................................. 75
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE............................... 76
Section 801. Company and Guarantors May Consolidate, etc., Only on Certain Terms............ 76
Section 802. Successor Substituted.......................................................... 77
ARTICLE NINE
SUPPLEMENTAL INDENTURES............................................. 78
Section 901. Supplemental Indentures and Agreements, without Consent of Holders............. 78
Section 902. Supplemental Indentures and Agreements with Consent of Holders................. 79
Section 903. Execution of Supplemental Indentures and Agreements............................ 80
Section 904. Effect of Supplemental Indentures.............................................. 80
Section 905. Conformity with Trust Indenture Act............................................ 80
Section 906. Reference in Securities to Supplemental Indentures............................. 80
Section 907. Notice of Supplemental Indentures.............................................. 80
Section 908. Revocation and Effects of Consents............................................. 81
Section 909. Effect on Senior Indebtedness.................................................. 81
ARTICLE TEN
COVENANTS.................................................... 81
Section 1001. Payment of Principal, Premium and Interest.................................... 81
Section 1002. Maintenance of Office or Agency............................................... 81
Section 1003. Money for Security Payments to Be Held in Trust............................... 81
Section 1004. Corporate Existence........................................................... 83
Section 1005. Payment of Taxes and Other Claims............................................. 83
Section 1006. Maintenance of Properties..................................................... 83
Section 1007. Insurance..................................................................... 83
Section 1008. Limitation on Indebtedness.................................................... 84
iii
SECTION PAGE
------- ----
Section 1009. Limitation on Restricted Payments............................................. 86
Section 1010. Limitation on Liens........................................................... 88
Section 1011. Purchase of Securities Upon a Change of Control............................... 88
Section 1012. Disposition of Proceeds of Asset Sales........................................ 91
Section 1013. Limitation on Sale, Issuance and Ownership of Capital Stock of Restricted
Subsidiaries.................................................................. 95
Section 1014. Limitation on Transactions with Affiliates.................................... 95
Section 1015. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries....................................................... 96
Section 1016. Limitation on Certain Senior Subordinated Obligations......................... 96
Section 1017. Limitations on Designation of Unrestricted Subsidiaries....................... 96
Section 1018. Limitation on Non-Guarantor Restricted Subsidiaries........................... 98
Section 1019. Reporting Requirements........................................................ 99
Section 1020. Waiver of Certain Covenants................................................... 99
Section 1021. Waiver of Stay, Extension or Usury Laws....................................... 100
ARTICLE ELEVEN
REDEMPTION OF SECURITIES............................................ 100
Section 1101. Rights of Redemption.......................................................... 100
Section 1102. Applicability of Article...................................................... 100
Section 1103. Election to Redeem; Notice to Trustee......................................... 100
Section 1104. Selection by Trustee of Securities to Be Redeemed............................. 101
Section 1105. Notice of Redemption.......................................................... 101
Section 1106. Deposit of Redemption Price................................................... 102
Section 1107. Securities Payable on Redemption Date......................................... 102
Section 1108. Securities Redeemed or Purchased in Part...................................... 102
ARTICLE TWELVE
SATISFACTION AND DISCHARGE........................................... 103
Section 1201. Satisfaction and Discharge of Indenture....................................... 103
Section 1202. Application of Trust Money.................................................... 104
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES.......................................... 104
Section 1301. Securities Subordinate to Senior Indebtedness................................. 104
Section 1302. Payment Over of Proceeds upon Dissolution, etc................................ 104
Section 1303. Suspension of Payment When Designated Senior Indebtedness in Default.......... 105
Section 1304. Payment Permitted if No Default............................................... 107
Section 1305. Subrogation to Rights of Holders of Senior Indebtedness....................... 107
Section 1306. Provisions Solely to Define Relative Rights................................... 107
Section 1307. Trustee to Effectuate Subordination........................................... 107
Section 1308. No Waiver of Subordination Provisions......................................... 108
Section 1309. Notice to Trustee............................................................. 108
Section 1310. Reliance on Judicial Orders or Certificates................................... 109
iv
SECTION PAGE
------- ----
Section 1311. Rights of Trustee as a Holder of Senior Indebtedness; Preservation of Trustee's
Rights........................................................................ 109
Section 1312. Article Applicable to Paying Agents........................................... 109
Section 1313. No Suspension of Remedies..................................................... 109
Section 1314. Trustee's Relation to Senior Indebtedness..................................... 110
ARTICLE FOURTEEN
GUARANTEES.................................................. 110
Section 1401. Guarantors' Guarantee........................................................ 110
Section 1402. Continuing Guarantee; No Right of Set-Off: Independent Obligation............ 110
Section 1403. Guarantee Absolute............................................................ 111
Section 1404. Right to Demand Full Performance.............................................. 113
Section 1405. Waivers....................................................................... 113
Section 1406. The Guarantors Remain Obligated if the Company is No Longer Obligated to
Discharge Indenture Obligations............................................... 113
Section 1407. Fraudulent Conveyance: Contribution; Subrogation.............................. 114
Section 1408. Guarantee is in Addition to Other Security.................................... 114
Section 1409. Release of Security Interests................................................. 114
Section 1410. No Bar to Further Actions..................................................... 114
Section 1411. Failure to Exercise Rights Shall Not Operate as a Waiver;
No Suspension of Remedies..................................................... 115
Section 1412. Trustee's Duties; Notice to Trustee........................................... 115
Section 1413. Successors and Assigns........................................................ 115
Section 1414. Release of Guarantee.......................................................... 115
Section 1415. Execution of Guarantee: Additional Guarantors................................. 116
Section 1416. Guarantee Subordinate to Guarantor Senior Indebtedness........................ 116
Section 1417. Payment Over of Proceeds Upon Dissolution of the Guarantor, etc............... 117
Section 1418. Default on Guarantor Senior Indebtedness...................................... 118
Section 1419. Payment Permitted by Each of the Guarantors if No Default..................... 118
Section 1420. Subrogation to Rights of Holders of Guarantor Senior Indebtedness............. 118
Section 1421. Provisions Solely to Define Relative Rights................................... 119
Section 1422. Trustee to Effectuate Subordination........................................... 119
Section 1423. No Waiver of Subordination Provisions......................................... 119
Section 1424. Notice to Trustee by Each of the Guarantors................................... 120
Section 1425. Reliance on Judicial Orders or Certificates................................... 120
Section 1426. Rights of Trustee as a Holder of Guarantor Senior Indebtedness;
Preservation of Trustee's Rights.............................................. 121
Section 1427. Article Applicable to Paying Agents........................................... 121
Section 1428. No Suspension of Remedies..................................................... 121
Section 1429. Trustee's Relation to Guarantor Senior Indebtedness........................... 121
SCHEDULE 1008 Existing Indebtedness
SCHEDULE 1015 Dividend and Other Payment Restrictions Affecting Subsidiaries
v
SECTION PAGE
EXHIBIT A [INTENTIONALLY OMITTED]
EXHIBIT B Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Rule 144(k)
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers
Pursuant to Regulation S
APPENDIX I Form of Transferee Certificate for Series A Securities
APPENDIX II Form of Transferee Certificate for Series B Securities
vi
INDENTURE, dated as of December 17, 1997, among NEWPARK RESOURCES, INC., a
Delaware corporation (the "Company"), the GUARANTORS (as defined hereinafter)
and STATE STREET BANK AND TRUST COMPANY, a Massachusetts banking and trust
company, as trustee (in such capacity, the "Trustee").
RECITALS OF THE COMPANY AND THE GUARANTORS
The Company has duly authorized the creation of an issue of 8 5/8% Senior
Subordinated Notes due 2007, Series A (together with all such Series A
Securities issued in replacement of or exchange for any other Series A
Securities, the "Series A Securities" or the "Initial Securities"), and an issue
of 8 5/8% Senior Subordinated Notes due 2007, Series B (together with all such
Series B Securities issued in replacement of or exchange for any other Series B
Securities, the "Series B Securities" and, together with the Series A
Securities, the "Securities"), of substantially the tenor and amount hereinafter
set forth, and to provide therefor the Company has duly authorized the execution
and delivery of this Indenture and the Securities;
Each Guarantor has duly authorized the issuance of a Guarantee of the
Securities, of substantially the tenor hereinafter set forth, and to provide
therefor, each Guarantor has duly authorized the execution and delivery of this
Indenture and its Guarantee;
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act that are required to be part of and to govern indentures
qualified under the Trust Indenture Act;
All acts and things necessary have been done to make (i) the Securities,
when duly issued and executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, (ii) the Guarantees, when
executed by each of the Guarantors and delivered hereunder, the valid obligation
of each of the Guarantors and (iii) this Indenture a valid agreement of the
Company and each of the Guarantors in accordance with the terms of this
Indenture;
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
Section 101. 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;
1
(b) whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part hereof, and
the following Trust Indenture Act terms used in this Indenture have the
following meanings: (i) "indenture notes" means the Securities, (ii) "indenture
noteholder" means a Holder, (iii) "indenture to be qualified" means this
Indenture, and (iv) "obligor" on the indenture notes means the Company; and all
other terms used herein which are defined in 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 GAAP;
(d) "or" is not exclusive and "including" means "including without
limitation";
(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;
(f) provisions apply to successive events and transactions;
(g) all references to $, US$, dollars or United States dollars shall refer
to the lawful currency of the United States of America; and
(h) all references herein to particular Sections or Articles refer to this
Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in Article Four.
"ACQUIRED INDEBTEDNESS" means Indebtedness (but no Refinancing thereof) of
a person (a) assumed in connection with an Asset Acquisition from such person or
(b) existing at the time such person becomes a Subsidiary of any other person,
but not including Indebtedness incurred in connection with, or in anticipation
of, such person becoming a Subsidiary.
"ADMINISTRATIVE AGENT" means Bank One, Louisiana, National Association, as
Administrative Agent under the Credit Facility.
"AFFILIATE" means, with respect to any specified person, 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 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. For
purposes of this definition, beneficial ownership of 10% or less of the voting
common equity (on a fully diluted basis) or options or warrants to purchase such
equity (but only if exercisable at the date of determination or within 60 days
thereof) of a person shall not, in and of itself, be deemed to constitute
control of such person.
"ASSET ACQUISITION" means (a) an Investment by the Company or any
Subsidiary of the Company in any other person pursuant to which such person
shall become a Restricted Subsidiary, or shall be merged with or into the
Company or any Restricted Subsidiary, or (b) the acquisition by the Company or
any Restricted Subsidiary of the assets of any person which constitute all or
substantially all of the assets of such person or any division, operating unit
or line of business of such person.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease or other
disposition by the Company or any Restricted Subsidiary to any person other than
the Company or a Restricted Subsidiary), in one or a series of related
transactions, of: (a) any Capital Stock of any Subsidiary of the Company; (b)
all or substantially all of the properties and assets of any division or line of
business of the Company
2
or any Restricted Subsidiary; or (c) any other properties or assets of the
Company or a Restricted Subsidiary other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
include (i) for purposes of Section 1012 only, any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets (A) that is
governed by, and made in compliance with, the provisions described under Article
Eight or (B) constitutes a Change of Control pursuant to clause (b) of the
definition thereof, (ii) any sale of worn-out or obsolete equipment that, in the
Company's reasonable judgment, is no longer used or useful in the business of
the Company or the Restricted Subsidiaries; (iii) any sale, issuance,
conveyance, transfer, lease or other disposition of properties or assets,
whether in one transaction or a series of related transactions, involving assets
with a Fair Market Value not in excess of $1,000,000; (iv) any lease of assets
or property entered into in the ordinary course of business and with respect to
which the Company or any Restricted Subsidiary is the lessor, except any such
lease that provides for the acquisition of such assets or property by the lessee
during or at the term thereof for an amount that is less than the Fair Market
Value thereof as determined at the time the right to acquire such assets or
property is granted, in which case an Asset Sale shall be deemed to occur at the
time such right is granted; and (v) the sale of any property received pursuant
to clause (h) of the definition of "Permitted Investment."
"ATTRIBUTABLE VALUE" means, as to a Capitalized Lease Obligation under
which any person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount thereof that would appear on
the face of a balance sheet of such person in accordance with GAAP.
"AVERAGE LIFE TO STATED MATURITY" means as of the date of determination
with respect to any Indebtedness, the quotient obtained by dividing (i) the sum
of the products of (a) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (b) the amount of each such principal payment by (ii)
the sum of all such principal payments.
"BANKRUPTCY LAW" means Xxxxx 00, Xxxxxx Xxxxxx Code, as amended, or any
similar United States federal or state law relating to bankruptcy, insolvency,
receivership, winding up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any much law.
"BOARD OF DIRECTORS" means the board of directors of the Company or any
Guarantor, as the case may be, or any duly authorized committee of such board.
"BOARD RESOLUTION" means, with respect to a person, a copy of a resolution
certified by the Secretary or an Assistant Secretary of such person, the
principal financial officer of such person or any other authorized officer of
such person or a person duly authorized by any of them, to have been duly
adopted by the Board of Directors of such person and to be in full force and
effect on the date of such certification.
"BOOK-ENTRY SECURITY" means any Global Securities bearing the legend
specified in Section 202 evidencing all or part of a series of Securities,
authenticated and delivered to the Depositary for such series or its nominee,
and registered in the name of such Depositary or nominee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions or trust companies in The City
of New York or the city in which the Corporate Trust Office of the Trustee is
located are authorized or obligated by law, regulation or executive order to
close.
"CAPITAL STOCK" means, with respect to any person, any and all shares,
interests, participations, rights in or other equivalents of or interests in
(however designated) equity of such person (including any Preferred Stock), and
any rights (other than debt securities convertible into capital stock), warrants
or options exchangeable for or convertible into such equity.
3
"CAPITALIZED LEASE OBLIGATION" means any obligation to pay rent or other
amounts under a lease of (or other agreement conveying the right to use) any
property (whether real, personal or mixed) that is required to be classified and
accounted for as a capital lease obligation under GAAP, and, for the purpose of
the Indenture, the amount of such obligation at any date shall be the
Attributable Value thereof at such date.
"CASH EQUIVALENTS" means, at any time: (i) any evidence of Indebtedness
with a maturity of 360 days or less from the date of acquisition thereof issued
or directly and fully guaranteed or insured by the United States of America or
any agency or instrumentality thereof (provided that the full faith and credit
of the United States of America is pledged in support thereof); (ii) (x) demand
and time deposits and certificates of deposit or acceptances with a maturity of
360 days or less from the date of acquisition thereof of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500,000,000 and (y)
Eurocurrency time deposits maturing within 360 days from the date of acquisition
thereof with any branch or office of any commercial bank organized under the
laws of a country that is a member of the Organization for Economic Cooperation
and Development (the "OECD"), and comparable in quality to the Investments
permitted by the preceding clause (x); (iii) commercial paper with a maturity of
360 days or less issued by a corporation that is not an Affiliate of the Company
organized under the laws of any State of the United States or the District of
Columbia and rated at least A-1 by S&P or at least P-1 by Xxxxx'x or at least an
equivalent rating category of another nationally recognized securities rating
agency; (iv) repurchase agreements and reverse repurchase agreements relating to
marketable direct obligations issued or unconditionally guaranteed by the
government of the United States of America or issued by any agency thereof and
backed by the full faith and credit of the United States of America, in each
case maturing within 360 days from the date of acquisition; (v) deposits
available for withdrawal on demand with any commercial bank organized under the
laws of any country that is a member of the OECD and has total assets in excess
of $100,000,000 or with any commercial bank organized under the laws of any
other country (other than the United States) in which the Company or any
Restricted Subsidiary maintains an office or is engaged in offshore operations,
provided that (a) all such deposits are required to be made in such accounts in
the ordinary course of business and (b) such deposits do not at any one time
exceed $5,000,000 in the aggregate; and (vi) money market funds organized under
the laws of the United States of America or any State thereof and sponsored by a
registered broker dealer or mutual fund distributor, that invest substantially
all of their assets in any of the types of investments described in clause (i),
(ii) or (iii) above.
"CHANGE OF CONTROL" means the occurrence of any of the following events:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d)
of the Exchange Act) is or becomes the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to
have "beneficial ownership" of all securities that such person has the
contractual right to acquire, whether such right is exercisable immediately or
only after the passage of time), directly or indirectly, of more than 50% of the
total voting power of the outstanding Voting Stock of the Company (for the
purposes of the clause (a), such person shall be deemed to beneficially own any
Voting Stock of a specified corporation held by a parent corporation, if such
person is the beneficial owner (as defined in this clause (a)), directly or
indirectly, of more than 50% of the total voting power of the Voting Stock of
such parent corporation); (b) the Company consolidates with, or merges with or
into, another person or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets to any person, or any person
consolidates with, or merges with or into, the Company in any such event
pursuant to a transaction in which the outstanding Voting Stock of the Company
is converted into or exchanged for cash, securities or other property, other
than any such transaction where (i) the outstanding Voting Stock of the Company
is converted into or exchanged for (1) Voting Stock (other than Redeemable
Capital Stock) of the surviving or transferee corporation or (2) cash,
securities and other property in an amount which could be paid by the Company as
a Restricted Payment under the Indenture and (ii) immediately after such
transaction, no "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the
4
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all securities that such person has the contractual right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total Voting Stock of
the surviving or transferee corporation; or (c) during any consecutive two-year
period, individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders of the
Company was approved by a vote of at least two thirds of the directors then
still in office who were either directors at the beginning of such period or
persons whose election as directors or nomination for election was previously so
approved) cease for any reason to constitute at least a majority of the Board of
Directors of the Company then in office.
"COMMISSION" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture 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.
"COMPANY" means Newpark Resources, Inc., a corporation incorporated under
the laws of Delaware, 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 any one of its Chairman of the Board, its
President, its Chief Executive Officer, its Chief Financial Officer or a Vice
President (regardless of Vice Presidential designation), and by any one of its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"CONSOLIDATED EBITDA" means, with respect to the Company for any period,
(i) the sum of, without duplication, the amount for such period, taken as a
single accounting period, of (a) Consolidated Net Income, (b) Consolidated Non-
cash Charges, (c) Consolidated Interest Expense and (d) Consolidated Income Tax
Expense, less (ii) non-cash items increasing Consolidated Net Income for such
period.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, with respect to the
Company, the ratio of the aggregate amount of Consolidated EBITDA of the Company
for the four full fiscal quarters for which financial information in respect
thereof is available immediately preceding the date of the transaction (the
"Transaction Date") giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (such four full fiscal quarter period being referred to
herein as the "Four Quarter Period") to the aggregate amount of Consolidated
Fixed Charges of the Company for the Four Quarter Period. In addition to and
without limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Fixed Charges" shall be calculated after
giving effect on a pro forma basis for the period of such calculation to,
without duplication, (a) the incurrence of any Indebtedness of the Company or
any of the Restricted Subsidiaries during the period commencing on the first day
of the Four Quarter Period to and including the Transaction Date (the "Reference
Period"), including, without limitation, the incurrence of the Indebtedness
giving rise to the need to make such calculation (and the application of the net
proceeds thereof), as if such incurrence (and application) occurred on the first
day of the Reference Period, (b) an adjustment to eliminate or include, as the
case may be, the Consolidated EBITDA and Consolidated Fixed Charges of such
person directly or indirectly attributable to assets which are the subject of
any Asset Sale or Asset Acquisition (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the
Company or one of the Restricted Subsidiaries (including any person who becomes
a Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness) occurring during
the Reference Period, as if such Asset Sale (after giving effect to any
Designation of Unrestricted Subsidiaries) or Asset Acquisition occurred on the
first day of the Reference Period and (c) the retirement of Indebtedness during
the Reference Period which cannot thereafter be reborrowed occurring as if
retired
5
on the first day of the Reference Period. For purposes of calculating
"Consolidated Fixed Charges" for this "Consolidated Fixed Charge Coverage
Ratio," interest on Indebtedness incurred during the Four Quarter Period under
any revolving credit facility which can be borrowed and repaid without reducing
the commitments thereunder shall be the actual interest during the Four Quarter
Period. Furthermore, in calculating "Consolidated Fixed Charges" for purposes
of determining the denominator (but not the numerator) of this "Consolidated
Fixed Charge Coverage Ratio", (i) interest on outstanding Indebtedness
determined on a fluctuating basis as of the Transaction Date and which will
continue to be so determined thereafter shall be deemed to have accrued at a
fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date, (ii) if interest on any Indebtedness actually
incurred on the Transaction Date may optionally be determined at an interest
rate based upon a factor of a prime or similar rate, a eurocurrency interbank
offered rate, or other rates, then the interest rate in effect on the
Transaction Date will be deemed to have been in effect during the Reference
Period; and (iii) notwithstanding clauses (i) and (ii) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest is
covered by agreements relating to Interest Rate Protection Obligations, shall be
deemed to have accrued at the rate per annum resulting after giving effect to
the operation of such agreements.
"CONSOLIDATED FIXED CHARGES" means, with respect to the Company for any
period, the amounts for such period of Consolidated Interest Expense.
"CONSOLIDATED INCOME TAX EXPENSE" means, with respect to the Company for
any period, the provision for federal, state, local and foreign income taxes of
the Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, with respect to the Company for any
period, without duplication, the sum of (i) the interest expense of the Company
and the Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP related to Indebtedness, excluding fees related to
the issuance of the Securities, but including, without limitation, (a) any
amortization of debt discount, (b) the net cost under Interest Rate Protection
Obligations and Currency Agreement Obligations (including any amortization of
discounts), (c) the interest portion of any deferred payment obligation which in
accordance with GAAP is required to be reflected on an income statement, (d) all
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing (other than in respect of letters of
credit relating to bid, performance and advance payment obligations incurred in
the ordinary course of business), (e) dividends payable in respect of Redeemable
Capital Stock (whether or not paid), (f) all accrued interest and (g) interest
accruing on any Indebtedness of any other person to the extent such Indebtedness
is guaranteed by the Company or any Restricted Subsidiary or secured by a Lien
on assets of the Company or any Restricted Subsidiary to the extent such
Indebtedness constitutes Indebtedness of the Company or any Restricted
Subsidiary (whether or not such guarantee or Lien is called upon) and (ii) the
interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company and the Restricted Subsidiaries
during such period as determined on a consolidated basis in accordance with
GAAP.
"CONSOLIDATED NET INCOME" means, with respect to the Company, for any
period, the consolidated net income (or loss) of the Company (including the
Restricted Subsidiaries) for such period as determined in accordance with GAAP
consistently applied adjusted, to the extent included in calculating such net
income, by excluding, without duplication, (i) all extraordinary gains or losses
(net of fees and expenses relating to the transaction giving rise thereof) and
the non-recurring cumulative effect of accounting charges, (ii) except to the
extent actually received by the Company and any Restricted Subsidiary, income of
the Company and the Restricted Subsidiaries derived from or in respect of all
Investments in persons other than any Restricted Subsidiary, (iii) net income
(or loss) of any person combined with the Company or one of the Restricted
Subsidiaries on a "pooling of interests" basis attributable to any period prior
to the date of combination, (iv) any gain or loss realized upon the termination
of any employee pension benefit plan, on an after-tax basis, (v) gains or losses
in respect of
6
any Asset Sales by the Company or one of the Restricted Subsidiaries (net of
fees and expenses relating to the transaction giving rise thereto), on an after-
tax basis, (vi) the net income of any Restricted Subsidiary to the extent that
the declaration of dividends or similar distributions by that Restricted
Subsidiary of that income (A) is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulations
applicable to that Restricted Subsidiary or its stockholders or (B) requires the
approval of any minority interest in such Restricted Subsidiary except to the
extent dividends or similar distributions are actually declared payable to the
Company by such Restricted Subsidiary and (vii) the cumulative effect of a
change in accounting principles; provided that there shall be included in net
income of the Company or such Restricted Subsidiary dividends or distributions
excluded from net income of such person in a previous fiscal period pursuant to
clause (ii) or clause (vi) to the extent such dividends or distributions are
actually received in the current fiscal period.
"CONSOLIDATED NON-CASH CHARGES" means, with respect to the Company for any
period, the aggregate depreciation, amortization and other non-cash expenses
(including, without limitation, non-cash reserves and non-cash charges) of the
Company and the Restricted Subsidiaries reducing Consolidated Net Income of the
Company and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"CORPORATE TRUST OFFICE" means the office of the Trustee or an affiliate or
agent thereof at which at any particular time the corporate trust business for
the purposes of this Indenture shall be principally administered, which office
at the date of execution of this Indenture is located at 000 Xxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000.
"CREDIT FACILITY" means the Restated Credit Agreement dated as of June 30,
1997, as amended on November 7, 1997 and December 10, 1997, among the Company,
certain of its Subsidiaries as guarantors, the financial institutions from time
to time lenders party thereto, Bank One, Louisiana, National Association, as
administrative and syndication agent, and Deutsche Bank, A.G., New York Branch
and/or Cayman Islands Branch, as documentation agent, and any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such agreement or such related notes, guarantees,
collateral documents, instruments or agreements, or any of them, may be amended,
modified, supplemented, extended, restated, replaced (including replacement
after the termination of such agreement), restructured, renewed or otherwise
Refinanced from time to time in one or more credit agreements, loan agreements,
instruments or similar documents and agreements, as such may be further amended,
modified, supplemented, extended, restated, replaced (including replacement
after the termination of such agreement), restructured, renewed or otherwise
Refinanced from time to time, in each case in accordance with and as permitted
by the Indenture.
"CREDIT FACILITY OBLIGATIONS" means all monetary obligations of every
nature of the Company or a Restricted Subsidiary, including without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, from time to time owned to
the lenders or any agent under or in respect of the Credit Facility.
"CURRENCY AGREEMENT OBLIGATIONS" means the obligations of any person under
any foreign exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect such person against fluctuations in
currency values.
"DEFAULT" means any event that is, or after notice or passage of time or
both would be, an Event of Default.
"DEPOSITARY" means, with respect to the Securities issued in the form of
one or more Book-Entry Securities, The Depository Trust Company ("DTC"), its
nominees and successors, or another person
7
designated as Depositary by the Company, which must be a clearing agency
registered under the Exchange Act.
"DESIGNATED SENIOR INDEBTEDNESS" means (i) all Senior Indebtedness under
the Credit Facility Obligations and (ii) any other Senior Indebtedness which (a)
at the time of incurrence equals or exceeds $15,000,000 in aggregate principal
amount and (b) is specifically designated by the Company in the instrument
evidencing such Senior Indebtedness as "Designated Senior Indebtedness" for
purposes of the Indenture.
"DISINTERESTED DIRECTOR" means, with respect to any transaction or series
of related transactions, a member of the Board of Directors of the Company who
does not have any material direct or indirect financial interest in or with
respect to such transaction or series of related transactions. No non-
management director shall be deemed not to be a Disinterested Director by reason
of his or her receipt of reasonable and customary director's fees or the
participation in reasonable and customary director's stock grant, stock option
or stock benefit plans, or such other form of director remuneration as is
reasonable and customary.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any successor statute.
"EXCHANGE OFFER" means the exchange offer by the Company and the Guarantors
of Series B Securities for Series A Securities to be effected pursuant to
Section 2.1 of the Registration Rights Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the registration statement
under the Securities Act contemplated by Section 2.1 of the Registration Rights
Agreement.
"EXEMPT FOREIGN SUBSIDIARY" means (i) any Restricted Subsidiary engaged in
business permitted under this Indenture exclusively outside the United States of
America, irrespective of its jurisdiction of incorporation and (ii) any other
Subsidiary whose assets (excluding any cash and Cash Equivalents) consist
exclusively of Capital Stock or Indebtedness of one or more Restricted
Subsidiaries described in clause (i) of this definition, that, in any case, is
so designated by the Company in an Officers' Certificate delivered to the
Trustee and (a) is not a guarantor of, and has not granted any Lien to secure,
the Credit Facility or any other Indebtedness of the Company or any Subsidiary
other than another Exempt Foreign Subsidiary and (b) does not have total assets
that, when aggregated with the total assets of all other Exempt Foreign
Subsidiaries, exceed 25% of the Company's consolidated total assets, as
determined in accordance with GAAP, as reflected on the Company's most recent
quarterly or annual balance sheet. The Company may revoke the designation of
any Exempt Foreign Subsidiary by notice to the Trustee.
"FAIR MARKET VALUE" with respect to any asset or property means the sale
value that would be obtained in an arm's-length transaction between an informed
and willing seller under no compulsion to sell and an informed and willing buyer
under no compulsion to buy. Fair Market Value shall be determined by the Board
of Directors of the Company acting in good faith and shall be evidenced by a
Board Resolution of the Company delivered to the Trustee, which determination
shall be conclusive for all purposes of this Indenture.
"GAAP" means, at any date, generally accepted accounting principles in the
United States set forth in the Statements of Financial Accounting Standards and
the Interpretations, Accounting Principles Board Opinions and AICPA Accounting
Research Bulletins that are applicable to the circumstances as of the date of
determination and consistently applied; provided, however, that, except as
otherwise provided, all calculations made for purposes of determining compliance
with the terms of the covenants
8
set forth in "Certain Covenants" and other provisions of the Indenture shall
utilize GAAP in effect at the Issue Date.
"GLOBAL SECURITIES" means the Rule 144A Global Securities, the Regulation S
Global Securities and the Series B Global Securities to be issued as Book-Entry
Securities issued to the Depositary in accordance with Section 306.
"GUARANTEE" means a Guarantee by a Guarantor of the Company's obligations
with respect to the Securities, which Guarantee will be subordinated to Senior
Indebtedness of such Guarantor on the terms described under Section 1416. Any
such Guarantee (i) will be substantially in the form prescribed by the
Indenture, (ii) will be limited in amount to an amount not to exceed the maximum
amount that can be guaranteed by the applicable Guarantor without rendering such
Guarantee, as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally and (iii) will provide (a) that,
upon the sale, exchange or transfer, to any person (other than an Affiliate of
the Company), of all the Capital Stock of such Guarantor, or all or
substantially all of the assets of such Guarantor, pursuant to a transaction in
compliance with the Indenture, or (b) upon such Guarantor's release from all
third-party Indebtedness of the Company or any other Restricted Subsidiary, such
Guarantor shall for and during the applicable periods as provided in the
Indenture, be released from its obligations under its Guarantee.
"GUARANTEE" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the ordinary
course of business), direct or indirect, in any manner, of any part or all of
such obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment or damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"GUARANTOR" means (i) SOLOCO, L.L.C., a limited liability company formed
under the laws of the State of Louisiana, SOLOCO Texas, L.P., a limited
partnership formed under the laws of the State of Texas, Xxxxxx-Mill, L.P., a
limited partnership formed under the laws of the State of Texas, Newpark Texas,
L.L.C., a limited liability company formed under the laws of the State of
Louisiana, Newpark Holdings, Inc., a corporation organized under the laws of the
State of Louisiana, Newpark Environmental Management Company, L.L.C., a limited
liability company formed under the laws of the State of Louisiana, Newpark
Environmental Services of Texas L.P., a limited partnership formed under the
laws of the State of Texas, Newpark Drilling Fluids, Inc., a corporation
organized under the laws of the State of Texas, Supreme Contractors, Inc., a
corporation organized under the laws of the State of Louisiana, Excalibar
Minerals, Inc., a corporation organized under the laws of the State of Texas,
Excalibar Minerals of LA., L.L.C., a limited liability company formed under the
laws of the State of Louisiana, Chemical Technologies, Inc., a corporation
organized under the laws of the State of Texas, Newpark Texas Drilling Fluids,
L.P., a limited partnership formed under the laws of the State of Texas, NES
Permian Basin, L.P., a limited partnership formed under the laws of the State of
Texas, Newpark Environmental Services, Inc., a corporation organized under the
laws of the State of Delaware, NID, L.P., a limited partnership formed under the
laws of the State of Texas, Xxxxxxx Construction Company, Inc., a corporation
organized under the laws of the State of Texas, Newpark Shipholding Texas, L.P.,
a limited partnership formed under the laws of the State of Texas, Mallard &
Mallard of LA., Inc., a corporation organized under the laws of the State of
Louisiana, and Newpark Environmental Services Mississippi, L.P., a limited
partnership formed under the laws of the State of Mississippi, and (ii) each
other Restricted Subsidiary that delivers, or as a result of becoming a
Significant Subsidiary or incurring certain types of third-party Indebtedness or
guarantees, is required to deliver, a Guarantee pursuant to the terms of the
Indenture; and with respect to each person now or hereafter referred to by
either of the preceding clauses (i) and (ii), so long as and during such periods
that its Guarantee shall be in effect pursuant to the terms of the Indenture.
9
"GUARANTOR SENIOR INDEBTEDNESS" means the principal of, premium, if any,
and interest on, any Indebtedness of a Guarantor, whether outstanding on the
Issue Date or thereafter created, incurred, assumed or guaranteed by such
Guarantor, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to such Guarantor's Guarantee. Without limiting the generality of the
foregoing, "Guarantor Senior Indebtedness" shall also include the principal of,
premium, if any, and interest (including interest accruing after the filing of a
petition initiating any proceedings under any Bankruptcy Laws, whether or not
such interest is an allowable claim in such proceeding) on, and all other
amounts owing in respect of, Credit Facility Obligations of such Guarantor.
Notwithstanding the foregoing, Guarantor Senior Indebtedness of a Guarantor will
not include (a) Indebtedness of such Guarantor evidenced by its Guarantee, (b)
Indebtedness of such Guarantor that is expressly subordinated or junior in right
of payment to any Guarantor Senior Indebtedness of such Guarantor or its
Guarantee, (c) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11 United States Code, is by its terms
without recourse to such Guarantor, (d) any repurchase, redemption or other
obligation in respect of Redeemable Capital Stock of such Guarantor, (e) to the
extent it might constitute Indebtedness, any liability for federal, state, local
or other taxes owed or owing by such Guarantor, (f) Indebtedness of such
Guarantor to the Company or any of the Company's other Subsidiaries or any other
Affiliate of the Company or any of such Affiliate's Subsidiaries and (g) that
portion of any Indebtedness of such Guarantor which at the time of incurrence is
incurred in violation of the Indenture (but, as to any such Indebtedness, no
such violation shall be deemed to exist for purposes of this clause (g) if the
holder or holders of such Indebtedness or their representative or such Guarantor
shall have furnished to the Trustee an opinion, unqualified in all material
respects, of independent legal counsel, addressed to the Trustee (which legal
counsel may, as to matters of fact, rely upon a certificate of such Guarantor)
to the effect that the incurrence of such Indebtedness does not violate the
provisions of such Indenture); provided, that the foregoing exclusions shall not
affect the priorities of any Indebtedness arising solely by operation of law in
any case or proceeding or similar event described in clause (a), (b) or (c) of
the introductory clause of Section 1417.
"HOLDER" means a person in whose name a Security is registered in the
Security Register.
"INDEBTEDNESS" means, with respect to any person, without duplication; (a)
all liabilities of such person for borrowed money or for the deferred purchase
price of property or services, excluding any trade payables, advances on
contracts and other accrued current liabilities incurred in the ordinary course
of business, but including, without limitation, all obligations, contingent or
otherwise, of such person in connection with any letters of credit, banker's
acceptance or other similar credit transaction, (b) all obligations of such
person evidenced by notes, debentures or other similar instruments, (c) all
indebtedness, liabilities and obligations of such person created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such person (even if the rights and remedies of the seller
or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade accounts payable
arising in the ordinary course of business, (d) all Capitalized Lease
Obligations of such person, (e) all Redeemable Capital Stock of such person
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (f) all obligations of such person under or in
respect of Currency Agreement Obligations and Interest Rate Protection
Obligations of such person, (g) all liabilities, indebtedness and obligations of
the type referred to in the preceding clauses (a) through (f) of other persons
and all dividends of other persons for the payment of which such person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise, including by means of any guarantee, (h) all liabilities,
indebtedness and obligations of the type referred to in the preceding clauses
(a) through (g) of other persons which is secured by (or for which the holder of
such Indebtedness has an existing contractual right, contingent or otherwise, to
be secured by) any Lien upon property (including, without limitation, accounts
and contract rights) owned by such person, even though such person has not
assumed or become liable for the payment of such Indebtedness (the amount of
such obligation after being deemed to be the lesser of the value of such
property or asset or the amount of the obligation so secured), and (i) any
amendment, supplement,
10
modification, deferral, renewal, extension or refunding of any liability of the
types referred to in clauses (a) through (h) above. For purposes hereof, (x)
the "maximum fixed repurchase price" of any Redeemable Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be determined
pursuant to the Indenture, and if such price is based upon, or measured by, the
fair market value of such Redeemable Capital Stock, such fair market value shall
be the Fair Market Value of such Redeemable Capital Stock (provided that if such
Redeemable Capital Stock is not at the date of determination permitted or
required to be repurchased, the "maximum fixed repurchase price" shall be the
book value of such Redeemable Capital Stock) and (y) Indebtedness is deemed to
be incurred pursuant to a revolving credit facility each time an advance is made
thereunder. For purposes of Section 1008, in determining the principal amount
of any Indebtedness to be incurred by the Company or a Restricted Subsidiary or
which is outstanding at any date, (x) the principal amount of any Indebtedness
which provides that an amount less than the principal amount thereof shall be
due upon any declaration of acceleration thereof shall be the accredited value
thereof at the date of determination and (y) effect shall given to the impact of
any Interest Rate Protection Obligations and Currency Agreement Obligations with
respect to such Indebtedness. When any person becomes a Restricted Subsidiary,
there shall be deemed to have been an incurrence by such Restricted Subsidiary
of all Indebtedness for which it is liable at the time it becomes a Restricted
Subsidiary. If the Company or any of the Restricted Subsidiaries, directly or
indirectly, guarantees Indebtedness of a third person, there shall be deemed to
be an incurrence of such guaranteed Indebtedness as if the Company or such
Restricted Subsidiary had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"INDENTURE" means this instrument as originally executed (including all
exhibits and schedules thereto) and 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.
"INDENTURE OBLIGATIONS" means the obligations of the Company and any other
obligor under this Indenture or under the Securities including any Guarantor, to
pay principal of, premium, if any, and interest when due and payable, and all
other amounts due or to become due, under or in connection with this Indenture,
the Securities and the performance of all other obligations to the Trustee and
the Holders under this Indenture and the Securities, according to the respective
terms hereof and thereof.
"INITIAL SECURITIES" has the meaning stated in the first recital of this
Indenture.
"INITIAL PURCHASERS" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Deutsche Xxxxxx Xxxxxxxx Inc. and Salomon Brothers Inc.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities.
"INTEREST RATE PROTECTION OBLIGATIONS" means the obligations of any person
pursuant to any arrangement with any other person whereby, directly or
indirectly, such person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such person
calculated by applying a fixed or floating rate of interest on the same nominal
amount and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements.
"INVESTMENT" means, with respect to any person, any direct or indirect loan
or other extension of credit, guarantee or capital contribution to (by means of
any transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition by
such person of any Capital Stock, bonds, notes, debentures or other securities
or evidences of Indebtedness issued by, any other person. "Investments" shall
exclude contracts in progress and extensions of trade credit by any person in
the ordinary course of business of such person. In addition
11
to the foregoing, any foreign exchange contract, currency swap or similar
agreement shall constitute an Investment hereunder.
"ISSUE DATE" means the date on which the Securities are originally issued
under this Indenture.
"LIEN" means any mortgage, charge, pledge, lien (statutory or other),
security interest, hypothecation, assignment for security, claim, or preference
or priority or other encumbrance upon or with respect to any property of any
kind. A person shall be deemed to own subject to a Lien any property which such
person has acquired or holds subject to the interest of a vendor or lessor under
any conditional sale agreement, capital lease or other title retention agreement
having substantially the same economic effect as any of the foregoing.
"MATURITY" means, when used with respect to the Securities, the date on
which the principal of the Securities becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity, the Offer
Date or the Redemption Date and whether by declaration of acceleration, Offer in
respect of Excess Proceeds, Change of Control Offer in respect of a Change of
Control, call for redemption or otherwise.
"MOODY'S" means Xxxxx'x Investors Service, Inc. or any successor rating
agency.
"NET CASH PROCEEDS" means, with respect to any Asset Sale, the proceeds
thereof in the form of cash or Cash Equivalents, including, without limitation,
payments in respect of deferred payment obligations when received in the form of
cash or Cash Equivalents (except to the extent that such obligations are
financed or sold with recourse to the Company or any Restricted Subsidiary) net
of (i) brokerage commissions and other fees and expenses (including, without
limitation, fees and expenses of legal counsel and investment bankers) related
to such Asset Sale, (ii) provisions for all taxes payable as a result of such
Asset Sale, (iii) amounts required to be paid and which have been paid, or
amounts required to be pledged and which are pledged, to secure Indebtedness
owed, to any person (other than the Company or any Restricted Subsidiary) owning
a beneficial interest in the assets subject to the Asset Sale (which, in the
case of a Lien, is being pledged or applied to permanently reduce indebtedness
secured by such Lien) and (iv) appropriate amounts to be provided by the Company
or any Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may be, after
such Asset Sale, including, without limitation, pension and other post-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an officers' certificate delivered to the Trustee.
"NON-U.S. PERSON" means a person that is not a "U.S. Person" as defined in
Regulation S under the Securities Act.
"NON-U.S. SUBSIDIARIES" means Subsidiaries organized under the laws of
jurisdictions other than the United States and the states and territories
thereof.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board, the President, the Chief Executive Officer, the Chief Financial Officer
or a Vice President (regardless of Vice Presidential designation), and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company or any Guarantor, as the case may be, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for the Company or any Guarantor unless an Opinion of Independent Counsel is
required pursuant to the terms of this Indenture, and who shall be acceptable to
the Trustee.
12
"OPINION OF INDEPENDENT COUNSEL" means a written opinion of counsel which
is issued by a person who is not an employee, director or consultant (other than
non-employee legal counsel) of the Company or any Guarantor and who shall be
reasonably acceptable to the Trustee.
"OUTSTANDING" when used with respect to Securities means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company or any Affiliate thereof) in trust
or set aside and segregated in trust by the Company or any Affiliate
thereof (if the Company or any Affiliate thereof 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 reasonably
satisfactory to the Trustee has been made;
(c) Securities, except to the extent provided in Sections 402 and 403, with
respect to which the Company has effected defeasance or covenant defeasance
as provided in Article Four; and
(d) Securities 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 and the Company proof reasonably satisfactory to each of them that
such Securities are held by a bona fide purchaser in whose hands the
Securities are valid obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Securities owned by the
Company, any Guarantor, or any other obligor upon the Securities or any
Affiliate of the Company, any Guarantor or 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 reasonable satisfaction of
the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company, any Guarantor or any other obligor
upon the Securities or any Affiliate of the Company, any Guarantor or such
other obligor.
"PARI PASSU INDEBTEDNESS" means (a) any Indebtedness of the Company which
ranks pari passu in right of payment to the Securities and (b) with respect to
any Guarantor, Indebtedness which ranks pari passu in right of payment to its
Guarantee.
"PAYING AGENT" means any person (including the Company) authorized by the
Company to pay the principal of, premium, if any, or interest on, any Securities
on behalf of the Company.
"PERMITTED INVESTMENT" means any of the following: (a) Investments in the
Company or any Restricted Subsidiary (including any person that pursuant to such
Investment becomes a Restricted Subsidiary) and any person that is merged or
consolidated with or into, or transfers or conveys all or substantially all of
its assets to, the Company or any Wholly-Owned Restricted Subsidiary at the time
such Investment is made; (b) Investments in prepaid expenses, negotiable
instruments and other similar instruments (other than of Affiliates) held for
collection; (c) Investments in Cash Equivalents; (d) Investments in deposits
with respect to leases, workers' compensation or utilities provided to third
parties in the ordinary course of business; (e) Investments in the Securities;
(f) Investments in agreements giving rise to Interest Rate Protection
Obligations and Currency Agreement Obligations permitted by
13
Section 1008; (g) loans or advances to officers, employees or consultants of the
Company and the Restricted Subsidiaries in the ordinary course of business for
bona fide business purposes of the Company and the Restricted Subsidiaries
(including travel and moving expenses) not in excess of $1,000,000 in the
aggregate at any one time outstanding; (h) Investments in evidence of
Indebtedness, securities or other property received from another person by the
Company or any of the Restricted Subsidiaries in connection with any bankruptcy
proceeding or by reason of a composition or readjustment of debt or a
reorganization of such person or as a result of foreclosure, perfection or
enforcement of any Lien in exchange for evidences of Indebtedness, securities or
other property of such person held by the Company or any of the Restricted
Subsidiaries, or for other liabilities or obligations of such other person to
the Company or any of the Restricted Subsidiaries that were created in
accordance with the terms of the Indenture: (i) non-cash consideration received
as a result of Asset Sales permitted under Section 1012; (j) Investments not to
exceed $5,000,000 at any one time outstanding in any person whose business is
performed substantially outside of the United States of America and who is in a
similar line of business as the Company or a Restricted Subsidiary; (k)
Investments not to exceed $10,000,000 at any time outstanding in any person who
is engaged in the business of providing drilling fluids or associated
engineering and technical services to the onshore or offshore oil and gas
exploration industry; and (l) so long as no Default shall have occurred and be
continuing, the making of Investments constituting Restricted Payments in
persons (other than Wholly-Owned Restricted Subsidiaries of the Company) made
after the Issue Date not to exceed $10,000,000 at any time outstanding.
"PERSON" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"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 308 in exchange for a mutilated
Security or in lieu of a lost, destroyed or stolen Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Security.
"PREFERRED STOCK" means with respect to any person, any and all shares,
interests, participation or other equivalents (however designated) of such
person's preferred or preference stock whether now outstanding or issued after
the Issue Date, including, without limitation, all classes and series of
preferred or preference stock of such person.
"PROSPECTUS" means the prospectus included in a Registration Statement,
including any preliminary prospectus, and any such prospectus as amended or
supplemented by any prospectus supplement, including any such prospectus
supplement with respect to the terms of the offering of any portion of the
Series A Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference therein.
"PUBLIC EQUITY OFFERING" means an underwritten primary public offer and
sale of common stock of the Company pursuant to a registration statement that
has been declared effective by the Commission pursuant to the Securities Act
(other than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company).
"PURCHASE MONEY OBLIGATION" means any Indebtedness secured by a Lien on
assets related to the business of the Company or the Restricted Subsidiaries,
and any additions and accessions thereto, which are purchased or constructed by
the Company or any Restricted Subsidiary at any time after the Issue Date;
provided that (i) any security agreement or conditional sales or other title
retention contract pursuant to which the Lien on such assets is created
(collectively a "Security Agreement") shall be entered into prior to the date
that is 90 days after the purchase or substantial completion of the
14
construction of such assets and shall at all times be confined solely to the
assets so purchased or acquired, any additions and accessions thereto and any
proceeds therefrom, (ii) at no time shall the aggregate principal amount of the
outstanding Indebtedness secured thereby be increased, except in connection with
the purchase of additions and accessions thereto and except in respect of fees
and other obligations in respect of such Indebtedness and (iii) (A) the
aggregate outstanding principal amount of Indebtedness secured thereby
(determined on a per asset basis in the case of any additions and accessions)
shall not at the time such Security Agreement is entered into exceed 100% of the
purchase price to the Company or any Restricted Subsidiary of the assets subject
thereto or (B) the Indebtedness secured thereby shall be with recourse solely to
the assets so purchased or acquired, any additions and accessions thereto and
any proceeds therefrom.
"QIB" means a "Qualified Institutional Buyer" under Rule 144A under the
Securities Act.
"REDEEMABLE CAPITAL STOCK" means any class or series of Capital Stock that,
either by its terms, by the terms of any security into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time, would be required to be redeemed prior to the final
Stated Maturity of the principal of the Securities or is redeemable at the
option of the holder thereof at any time prior to the final Stated Maturity of
the principal of the Securities, or, at the option of the holder thereof at any
time prior to the final Stated Maturity of the principal of the Securities.
"REDEMPTION DATE" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the date fixed for such
redemption by or pursuant to this Indenture.
"REDEMPTION PRICE" when used with respect to any Security to be redeemed
pursuant to any provision in this Indenture means the price at which it is to be
redeemed pursuant to this Indenture.
"REFINANCE" means, in respect of any Indebtedness, to refinance, amend,
modify, supplement, restate, extend, renew, rearrange, restructure, refund,
repay, prepay, purchase, repurchase, redeem, defease or retire, or to issue
other Indebtedness in exchange or replacement for, such Indebtedness.
"Refinanced" and "Refinancing" shall have correlative meanings.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of December 10, 1997, among the Company, the Guarantors and the Initial
Purchasers.
"REGISTRATION STATEMENT" means any registration statement of the Company
and the Guarantors which covers any of the Series A Securities (and related
guarantees) or Series B Securities (and related guarantees) pursuant to the
provisions of the Registration Rights Agreement, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"REGULAR RECORD DATE" for the interest payable on any interest Payment Date
means the June 1 or December 1 (whether or not a Business Day) next preceding
such Interest Payment Date.
"REGULATION S GLOBAL SECURITIES" means one or more permanent global
Securities in registered form representing the aggregate principal amount of
Securities sold in reliance on Regulation S under the Securities Act.
"RESPONSIBLE OFFICER" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or any other officer of the
Trustee to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with the particular subject.
15
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that has not
been designated by the Board of Directors of the Company, by a Board Resolution
of the Company delivered to the Trustee, as an Unrestricted Subsidiary pursuant
to and in compliance with Section 1017. Any such designation may be revoked by
a Board Resolution of the Company delivered to the Trustee, subject to the
provisions of such covenant. For purposes of this definition, any directors'
qualifying shares or investments by foreign nationals mandated by applicable law
or government regulation shall be disregarded in determining the ownership of a
Restricted Subsidiary.
"RULE 144A GLOBAL SECURITIES" means one or more permanent global Securities
in registered form representing the aggregate principal amount of Securities
sold in reliance on Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Rating Corporation, or any successor rating
agency.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor statute.
"SENIOR INDEBTEDNESS" means, the principal of, premium, if any, and
interest on any Indebtedness of the Company, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Securities. Without
limiting the generality of the foregoing, "Senior Indebtedness" shall also
include the principal of, premium, if any, and interest (including interest
accruing after the filing of a petition initiating any proceeding under any
Bankruptcy Law, whether or not such interest is an allowable claim in such
proceeding) on, and all other amounts owing in respect of, Credit Facility
Obligations of the Company. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (a) Indebtedness evidenced by the Securities,
(b) Indebtedness that is expressly subordinate or junior in right of payment to
any Senior Indebtedness, (c) Indebtedness which, when incurred and without
respect to any election under Section 1111(b) of Xxxxx 00, Xxxxxx Xxxxxx Code,
is by its terms without recourse to the Company, (d) any repurchase, redemption
or other obligation in respect of Redeemable Capital Stock of the Company, (e)
to the extent it might constitute Indebtedness, amounts owing for goods,
materials or services purchased in the ordinary course of business or consisting
of trade payables or other current liabilities (other than any current
liabilities owing under the Credit Facility Obligations or the current portion
of any long-term Indebtedness which would constitute Senior Indebtedness but for
the operation of this clause (e)), (f) to the extent it might constitute
Indebtedness, any liability for federal, state, local or other taxes owed or
owing by the Company, (g) Indebtedness of the Company to a Subsidiary of the
Company or any other Affiliate of the Company or any of such Affiliate's
Subsidiaries and (h) that portion of any Indebtedness of the Company which at
the time of incurrence is incurred in violation of the Indenture (but, as to any
such Indebtedness, no such violation shall be deemed to exist for purposes of
this clause (h) if the holder or holders of such Indebtedness or their
representative or the Company shall have furnished to the Trustee an opinion,
unqualified in all material respects, of independent legal counsel, addressed to
the Trustee (which legal counsel may, as to matters of fact, rely upon a
certificate of the Company) to the effect that the incurrence of such
Indebtedness does not violate the provisions of such Indenture); provided that
the foregoing exclusions shall not affect the priorities of any Indebtedness
arising solely by operation of law in any case or proceeding or similar event
described in clause (a), (b) or (c) the introductory clause of Section 1302.
"SENIOR SUBORDINATED OBLIGATIONS" means, with respect to the Company or any
Guarantor, as the case may be, (i) any principal of, premium, if any, and
interest on, and any other amounts (including, without limitation, any payment
obligations with respect to the Securities arising as a result of any Asset
Sale, Change of Control or redemption) owing in respect of, the Securities
payable pursuant to the terms of the Securities or the Indenture or upon
acceleration of the Securities, with respect to the Company, (ii) the Guarantee
of such Guarantor, with respect to a Guarantor, and (iii) any other Indebtedness
of the Company or such Guarantor that specifically provides that such
Indebtedness is to rank pari passu with
16
the Securities or such Subsidiary Guarantee, as the case may be, in right of
payment and is not subordinated by its terms in right of payment to any
Indebtedness or other obligation of the Company or such Guarantor, which is not
Senior Indebtedness of the Company or such Guarantor.
"SENIOR REPRESENTATIVE" means the agent, indenture trustee or other trustee
or representative for any Senior Indebtedness.
"SERIES B GLOBAL SECURITIES" means one or more permanent global Securities
in registered form representing the aggregate principal amount of Series B
Securities exchanged for Series A Securities pursuant to the Exchange Offer.
"SHELF REGISTRATION STATEMENT" means a "shelf" registration statement of
the Company and the Guarantors pursuant to Section 2.2 of the Registration
Rights Agreement, which covers all of the Registrable Securities (as defined in
the Registration Rights Agreement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the Commission,
and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company which, as of
the relevant date of determination, would be a "significant subsidiary" as
defined in Rule 1.02(w) of Regulation S-X under the Securities Act as of the
Issue Date, assuming the Company is the "registrant" referred to in such
definition; provided that no Unrestricted Subsidiary shall be deemed a
Significant Subsidiary.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 309.
"SPECIFIED INDEBTEDNESS" means any Senior Indebtedness and any Guarantor
Senior Indebtedness.
"STATED MATURITY" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which any principal of such Note or such installment of interest is due
and payable, and when used with respect to any other Indebtedness or any
installments of interest thereon, means any date specified in the instrument
governing such Indebtedness as the fixed date on which the principal of such
Indebtedness, or such installment of interest thereon, is due and payable.
"SUBORDINATED OBLIGATIONS" means Indebtedness of the Company or a Guarantor
(whether outstanding on the Issue Date or thereafter incurred) which by its
terms is expressly subordinated in right of payment to the Securities or its
Guarantee, as the case may be.
"SUBSIDIARY" means, with respect to any person, (i) a corporation a
majority of whose Voting Stock is at the time, directly or indirectly, owned by
such person, by one or more Subsidiaries of such person or by such person and
one or more Subsidiaries of such person and (ii) any other person (other than a
corporation), including, without limitation, a limited liability company and a
limited partnership, in which such person, one or more Subsidiaries of such
person or such person and one or more Subsidiaries of such person, directly or
indirectly, at the date of determination thereof, has at least a majority
ownership interest entitled to vote in the election of directors, members,
partners, managers, officers, agents or trustees thereof (or other person
performing similar functions) or is a general partner (or serves in a similar
capacity to such person). For purposes of this definition, any directors'
qualifying shares or investments by foreign nationals mandated by applicable law
or governmental regulation shall be disregarded in determining the ownership of
a Subsidiary.
17
"TAXES" means any present or future tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and any other
liabilities related thereto) imposed or levied by or on behalf of a Taxing
Authority.
"TAXING AUTHORITY" means any government or any political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
"TRUSTEE" means the person named as the "Trustee" in the first paragraph of
this Indenture, 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 amended, or
any successor statute.
"UNRESTRICTED SUBSIDIARY" means a Subsidiary of the Company designated as
such pursuant to and in compliance with Section 1017 and any Subsidiary of such
Unrestricted Subsidiary. Any such designation may be revoked by a Board
Resolution of the Company delivered to the Trustee, subject to the provisions of
such covenant.
"U.S. GOVERNMENT OBLIGATIONS" means direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the United
States is pledged.
"VOTING STOCK" means any shares of any class or classes of Capital Stock
pursuant to which the holders of such shares have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of any person (irrespective of whether or not, at the time,
stock of any other class or classes shall have, or might have, voting power by
reason of the happening of any contingency).
"WHOLLY-OWNED RESTRICTED SUBSIDIARY" means a Restricted Subsidiary of which
100% of the outstanding Capital Stock is owned by the Company and/or another
Wholly-Owned Restricted Subsidiary. For purposes of this definition, any
directors' qualifying shares or investments by foreign nationals mandated by
applicable law or governmental regulation shall be disregarded in determining
the ownership of a Restricted Subsidiary.
Section 102. Other Definitions.
Term Defined in Section
---- ------------------
"Act" 105
"Additional Interest" 202
"Agent Members" 306
"Change of Control Date" 1011
"Change of Control Offer" 1011
"Change of Control Purchase Date" 1011
"Change of Control Purchase Notice" 1011
"Change of Control Purchase Price" 1011
"covenant defeasance" 403
"Defaulted Interest" 309
"defeasance" 402
"Defeasance Redemption Date" 404
18
"Defeased Securities" 401
"Designation" 1017
"Designation Xxxxxx" 0000
"Event Date" 202
"Excess Proceeds" 1012
"incur" 1008
"Initial Securities" Recitals
"Net Proceeds Deficiency" 1012
"Net Proceeds Offer" 1012
"Non-payment Default" 1303
"Offer Date" 1012
"Offered Price" 1012
"Payment Amount" 1012
"Pari Passu Indebtedness Xxxxxx" 0000
"Pari Passu Offer" 1012
"Payment Xxxxxx" 0000
"Payment Blockage Period" 1303
"Payment Default" 1303
"Permitted Guarantor Junior Securities" 1417
"Permitted Junior Securities" 1302
"Physical Securities" 306
"Private Placement Legend" 202
"Registration Default" 202
"Regulation S" 201
"Replacement Assets" 1012
"Required Filing Date" 1019
"Restricted Payments" 1009
"Revocation" 1017
"Rule 144A" 201
"Securities" Recitals
"Security Xxxxxx" 0000
"Security Register" 305
"Security Registrar" 305
"Series A Securities" Recitals
"Series B Securities" Recitals
"Special Payment Date" 309
"Surviving Entity" 801
"Surviving Guarantor Entity" 801
Section 103. 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 and any Guarantor (if
applicable) and any other obligor on the Securities (if applicable) shall
furnish to the Trustee an Officers' Certificate in a form and substance
reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with, and an Opinion of Counsel in a form and substance reasonably
acceptable to the Trustee stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that, in the case
of any such application or request as to which the furnishing of such
certificates or opinions is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
19
Every certificate or Opinion of Counsel 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 individual
or firm signing such 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 such individual or such firm,
he or it has made such examination or investigation as is necessary to enable
him or it 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 or
such firm, such condition or covenant has been complied with.
Section 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
person, or that they be so certified or covered by only one document, but one
such person may certify or give an opinion with respect to some matters and one
or more other such persons as to other matters, and any such person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company, any Guarantor or
other obligor on the Securities 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 may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company, any Guarantor or other obligor on the Securities stating that
the information with respect to such factual matters is in the possession of the
Company, any Guarantor or other obligor on the Securities, unless such officer
or 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. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such Opinions of Counsel may rely on certificates of the Company or
government or other officials customary for opinions of the type required,
including certificates certifying as to matters of fact, including that various
financial covenants have been complied with.
Any certificate or opinion of an officer of the Company, any Guarantor or
other obligor on the Securities may be based, insofar as it relates to
accounting matters upon a certificate or opinion of, or representations by, an
accountant or firm of accountants in the employ of the Company, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate or opinion may be based are erroneous. Any
certificate or opinion of any independent firm of public accountants filed with
the Trustee shall contain a statement that such firm is independent with respect
to the Company.
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.
20
Section 105. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
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, to 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 conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section 105.
(b) The ownership of Securities shall be proved by the Security Register.
(c) Any request, demand, authorization, direction, notice, consent, waiver
or other Act by the Holder of any Security shall bind every future Holder of the
same Security or the Holder of every Security issued upon the transfer thereof
or in exchange there for or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Company,
any Guarantor or any other obligor of the Securities in reliance thereon,
whether or not notation of such action is made upon such Security.
(d) The fact and date of the execution by any person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or
writing, or the authority of the person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of such Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. Notwithstanding Trust Indenture Act
Section 316(c), any such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not more than 30 days
prior to the first solicitation of Holders generally in connection therewith and
no later than the date such first solicitation is completed.
If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date or their designated proxies shall be deemed to be Holders for
purposes of determining whether Holders of the requisite proportion of
Securities then Outstanding have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act
(or their duly designated proxies), and for this purpose the Securities then
Outstanding shall be computed as of such record date; provided that no such
request, demand, authorization, direction, notice, consent, waiver or other Act
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six
months after such record date.
21
Section 106. Notices, etc., to the Trustee, the Company and any Guarantor.
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 Company or any Guarantor or any
other obligor on the Securities shall be sufficient for every purpose (except as
provided in Section 501(c)) hereunder if in writing and mailed, first-class
postage prepaid, or delivered by a nationally recognized overnight courier, to
or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Department (Newpark Resources, Inc. 8 5/8% Senior Subordinated Notes due 2007),
or at any other address previously furnished in writing to the Holders, the
Company, any Guarantor or any other obligor on the Securities by the Trustee; or
(b) the Company or any Guarantor by the Trustee or any Holder shall be
sufficient for every purpose (except as provided in Section 501(c)) hereunder if
in writing and mailed, first-class postage prepaid, or delivered by a nationally
recognized overnight courier, to the Company or such Guarantor addressed to it
c/o Newpark Resources, Inc., 0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxx, Xxxxxxxxx 00000-0000, Attention: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the Company or
such Guarantor.
Any notice required hereunder to be delivered to the lenders under the
Credit Facility shall be sufficient for every purpose hereunder if in writing
and mailed, first-class post,age prepaid or delivered by a nationally recognized
courier, to the Administrative Agent at Bank One, Louisiana, National
Association, 000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000-0000,
Attention: Xxxx X. Xxxxxx, Vice President, Facsimile No. (000) 000-0000, with a
copy to Gardere & Xxxxx, L.L.P., 0000 Xxx Xxxxxx, Xxxxxx, Xxxxx 00000-0000,
Attention: Xxxxxx X. Rule, Jr., Facsimile No: (000) 000-0000.
Section 107. 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, or delivered by a
nationally recognized overnight courier, to each Holder affected by such event,
at its 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. Any notice when mailed to a Holder in the aforesaid manner shall
be conclusively deemed to have been received by such Holder whether or not
actually received by such Holder. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision which is required or deemed to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, the provision or requirement of the Trust Indenture Act shall
22
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 latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture and the Securities by the
Company and the Guarantors, and all agreements of the Trustee in this Indenture,
shall bind their respective successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture or in the Securities or Guarantees
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, and a Holder shall have no claim therefor against any party
hereto.
Section 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities or Guarantees, express or
implied, shall give to any person (other than the parties hereto and their
successors hereunder, any Paying Agent, the Holders, the holders of Senior
Indebtedness and the holders of Senior Guarantor Indebtedness) any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 113. GOVERNING LAW.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Maturity or
Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal or premium, if any, 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 such Interest Payment Date or Redemption Date, or at
the Maturity or Stated Maturity and no interest shall accrue with respect to
such payment for the period from, and after, such interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. Independence of Covenants.
All covenants and agreements in this Indenture shall be given independent
effect so that if a particular action or condition is not permitted by any such
covenants, the fact that it would be permitted by an exception to, or be
otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
23
Section 116. Schedules and Exhibits.
All schedules and exhibits attached hereto are by this reference made a
part hereof with the same effect as if herein set forth in full.
Section 117. Counterparts.
This Indenture may be executed in any number of counterparts, and by each
party hereto on a separate counterpart, each of which shall be deemed an
original; but all such counterparts shall together constitute but one and the
same instrument.
Section 118. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
Holders. The Securities Registrar or Paying Agent may make reasonable rules for
its functions.
Section 119. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
Section 120. No Recourse Against Others.
A DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY, ANY
GUARANTOR OR THE TRUSTEE, SHALL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF
THE COMPANY, ANY GUARANTOR OR THE TRUSTEE, UNDER THIS INDENTURE OR THE
SECURITIES OR FOR ANY CLAIM BASED ON, IN RESPECT OF OR BY REASON OF, SUCH
OBLIGATIONS OR THEIR CREATION. EACH HOLDER BY ACCEPTING A SECURITY WAIVES AND
RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE ARE PART OF THE
CONSIDERATION FOR THE ISSUE OF THE SECURITIES AND THE GUARANTEES.
Section 121. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, each of Company and the
Guarantors, (i) acknowledges that it has, by separate written instrument,
designated and appointed Corporation Trust System as its authorized agent upon
which process may be served in any suit, action or proceeding arising out of or
relating to the Securities or the Guarantees or this Indenture that may be
instituted in any Federal or State court in the State of New York, Borough of
Manhattan, or brought under Federal or State securities laws or brought by the
Trustee (whether in its individual capacity or in its capacity as Trustee
hereunder), and acknowledges that Corporation Trust System has accepted such
designation, (ii) submits to the jurisdiction of any such court in any such
suit, action or proceeding, and (iii) agrees that service of process upon
Corporation Trust System and written notice of said service to it (mailed or
delivered to its President at the principal office of the Company as specified
in Section 106), shall be deemed in every respect effective service of process
upon it in any such suit or proceeding. Each of the Company and the Guarantors
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments as may be necessary to continue such
designation and appointment of Corporation Trust System in full force and effect
so long as this Indenture shall be in full force and effect; provided that each
of the Company and the Guarantors may and shall (to the extent Corporation Trust
System
24
ceases to be able to be served on the basis contemplated herein), by written
notice to the Trustee, designate such additional or alternative agents for
service of process under this Section 121 that (i) maintains an office located
in the Borough of Manhattan, The City of New York in the State of New York, (ii)
are either (x) counsel for the Company or (y) a corporate service company which
acts as agent for service of process for other Persons in the ordinary course of
its business and (iii) agrees to act as agent for service of process in
accordance with this Section 121. Such notice shall identify the name of such
agent for process and the address of such agent for process in the Borough of
Manhattan, The City of New York, State of New York. Upon the request of any
Holder, the Trustee shall deliver such information to such Holder.
Notwithstanding the foregoing, there shall, at all times, be at least one agent
for service of process for each of the Company and the Guarantors appointed and
acting in accordance with this Section 121.
To the extent that any of the Company or Guarantors has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution, execution or otherwise) with respect to itself or its
property, each of the Company and the Guarantors hereby irrevocably waives such
immunity in respect of its obligations under this Indenture and the Securities
and the Guarantees to the maximum extent permitted by law.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities, the Guarantees and the Trustee's certificate of
authentication thereon shall be in substantially the forms set forth in this
Article Two, with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted hereby 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,
any organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities
and Guarantees, as evidenced by their execution of the Securities and
Guarantees. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any, securities exchange in which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Initial Securities offered and sold in reliance on Rule 144A under the
Securities Act ("Rule 144A") shall be issued initially in the form of one or
more Rule 144A Global Securities, substantially in the form set forth in Section
202, Initial Securities offered and sold in reliance on Regulation S under the
Securities Act ("Regulation S") shall be issued initially in the form of one or
more Regulation S Global Securities, substantially in the form set forth in
Section 202, and Series B Securities exchanged for Series A Securities pursuant
to the Exchange Offer shall be issued initially in the form of one or more
Series B Global Securities substantially in the form set forth in Section 202,
in each case deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
25
Section 202. Form of Face of Security.
(a) The form of the face of any Series A Securities authenticated and
delivered hereunder shall be substantially as follows:
Unless and until (i) an Initial Security is sold under an effective
Registration Statement or (ii) an Initial Security is exchanged for a Series B
Security in connection with an effective Registration Statement, in each case
pursuant to the Registration Rights Agreement, then such Initial Security shall
bear the legend set forth below (the "Private Placement Legend") on the face
thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION IN AN OFFSHORE TRANSACTION AS SET FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES'S ACT ("RULE 144A")) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903
OR 904 OF REGULATION S, (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 000X
XXXXXX XXX XXXXXX XXXXXX, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION AS SET
FORTH BELOW WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH OF THE FOREGOING CASES, (I)
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(II) TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE
TRANSACTION," AND "U.S PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
[Legend if Series A Security is a Global Security]
26
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. TRANSFERS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITIES SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTIONS 306 AND 307 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Until all Senior Indebtedness is paid in full, each of the Series A
Securities at all times shall contain in a conspicuous manner the following
legend]
THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE
EXTENT SET FORTH IN ARTICLE THIRTEEN OF THE INDENTURE TO THE OBLIGATIONS
(INCLUDING INTEREST) OWED BY THE COMPANY AND CERTAIN OF ITS SUBSIDIARIES TO
ALL SENIOR INDEBTEDNESS; AND EACH HOLDER HEREOF BY ITS ACCEPTANCE HEREOF,
SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AS SET FORTH IN SAID
ARTICLE THIRTEEN OF THE INDENTURE.
27
NEWPARK RESOURCES, INC.
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007, SERIES A
CUSIP NO. _________
No. _______
$____________________________
Newpark Resources, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ________
or registered assigns, the principal sum of_________ United States dollars [IF
THE SERIES A SECURITY IS A GLOBAL SECURITY, THEN INSERT THE FOLLOWING:, or such
other principal amount (which, when taken together with the principal amounts of
all other Outstanding Securities, shall not exceed $125,000,000 less the
principal amount of Securities redeemed by the Company in accordance with the
Indenture) as may be set forth by the Security Registrar on Appendix A hereto in
accordance with the Indenture,] on December 15, 2007, at the office or agency of
the Company referred to below, and to pay interest thereon from December 17,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on June 15 and December 15 in each year,
commencing June 15, 1998 at the rate of 8 5/8% per annum, subject to adjustments
as described in the second following paragraph, in United States dollars, until
the principal hereof is paid or duly provided for. Interest shall be computed on
the basis of a 360-day year comprised of twelve 30-day months.
The Holder of this Series A Security is entitled to the benefits of the
Registration Rights Agreement among the Company, the Guarantors and the Initial
Purchasers, dated December 10, 1997, pursuant to which, subject to the terms and
conditions thereof, the Company and the Guarantors are obligated to consummate
the Exchange Offer pursuant to which the Holder of this Security (and the
related Guarantees) shall have the right to exchange this Security (and the
related Guarantees) for 8 5/8% Senior Subordinated Notes due 2007, Series B and
related guarantees (herein called the "Series B Securities") in like principal
amount as provided therein. The Series A Securities and the Series B Securities
are together (including related Guarantees) referred to as the "Securities".
The Series A Securities rank pari passu in right of payment with the Series B
Securities.
If either (a) the Exchange Offer Registration Statement is not filed with
the Commission on or prior to the 45th calendar day following the date of
original issue of the Series A Securities, (b) the Exchange Offer Registration
Statement has not been declared effective on or prior to the 105th calendar day
following the date of original issue of the Series A Securities or (c) the
Exchange Offer is not consummated on or prior to the 135th calendar day
following the date of original issue of the Series A Securities or a Shelf
Registration Statement is not declared effective on or prior to the 135th
calendar day following the date of original issue of the Series A Securities
(each such event referred to in clauses (a) through (c) above, a "Registration
Default"), the interest rate borne by the Series A Securities shall be increased
("Additional Interest") by one-quarter of one percent per annum upon the
occurrence of each Registration Default, which rate (as increased as aforesaid)
will increase by one quarter of one percent each 90-day period that such
Additional Interest continues to accrue under any such circumstance, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one percent (1%) per annum, including any increases pursuant to the provisions
of the following paragraph. Following the cure of all Registration Defaults the
accrual of Additional Interest will cease and the interest rate will revert to
the original rate; provided, however, that, if after any such reduction in
interest rate, a different event specified in clause (a), (b) or (c) above
occurs, the interest rate shall again be increased pursuant to the foregoing
provisions.
28
If the Shelf Registration Statement is unusable by the Holders for any
reason, and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 30 days
in the aggregate, then the interest rate borne by the Securities held by such
Holders will be increased by 0.25% per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) beginning on the
31st such date that such Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal amount
of the Securities at the beginning of each subsequent 90-day period provided
that the maximum aggregate increase in the interest rate will in no event exceed
one percent (1%) per annum, including any increases pursuant to the provisions
of the preceding paragraph. Any amounts payable under this paragraph shall also
be deemed "Additional Interest" for purposes of this Security. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three Business Days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Additional Interest shall be paid by
depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual Interest Payment
Date, immediately available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each
Interest Payment Date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.
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 any Predecessor Security) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the June 1 or December 1 (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, and interest on such defaulted interest at the
interest rate borne by the Series A Securities, to the extent lawful, shall
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 any Predecessor
Security) 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 this Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security, and exchange or transfer of the Security, will be made at the office
or agency of the Company in The City of New York maintained for that purpose, or
at such other office or agency as may be maintained 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. Payment of interest will
be made (i) in respect of Securities held by the Depositary or its nominee, in
same day funds on or prior to the respective Interest Payment Dates and (ii) in
respect of Securities held of record by Holders other than the Depositary or its
nominee, in same day funds at the office of the Trustee in New York, New York or
at such other office or agency of the Company as it shall maintain for that
purpose pursuant to Section 1002; provided, however, that, at the option of the
Company, interest on any Security held of record by Holders other than the
Depositary or its nominee may be paid by mailing checks to the addresses of the
Holders thereof as such address 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.
29
This Security is entitled to the benefits of Guarantees by each of the
Guarantors of the punctual payment when due of the Indenture Obligations made in
favor of the Trustee for the benefit of the Holders. Reference is hereby made
to Article Fourteen of the Indenture for a statement of the respective rights,
limitations of rights, duties and obligations under the Guarantees of each of
the Guarantors.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers.
Dated: NEWPARK RESOURCES, INC.
By:
-----------------------------------
Title:
-----------------------------------
Attest:
------------------------------
Authorized Officer
30
[IF THE SERIES A SECURITY IS A GLOBAL SECURITY,
THEN INSERT THE FOLLOWING AS APPENDIX A THERETO]
APPENDIX A
EXCHANGES FOR GLOBAL NOTES OR PHYSICAL NOTES
The following increases or decreases in the principal amount of this Global
Note in accordance with the Indenture have been made:
Increase (decrease)
in the principal New principal amount of Notation made by or on
amount of this this Global Note following behalf of the Security
Date Made Global Note such increase or decrease Registrar
---------- -------------------- -------------------------- ------------------------
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
31
(b) The form of the face of any Series B Securities authenticated and
delivered hereunder shall be substantially as follows:
To the extent that any Series B Security is a Private Exchange Security (as
defined in the Registration Rights Agreement) and until such Series B Security
is freely tradable without registration under the Securities Act, then such
Series B Security shall bear the legend set forth below (the "Private Placement
Legend") on the Face thereof;
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION IN AN OFFSHORE TRANSACTION AS SET FORTH BELOW.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION PURSUANT TO RULE 903 OR
904 OF REGULATION S, (2) AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR
OF THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C)
FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 000X
XXXXXX XXX XXXXXX XXXXXX, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT
TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION AS SET
FORTH BELOW WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR
(E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH OF THE FOREGOING CASES, (I)
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER, TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND
(II) TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO
THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE
TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM
BY REGULATION S UNDER THE SECURITIES ACT.
[Legend if Series B Security is a Global Security]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
32
OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[Until all Senior Indebtedness is paid in full, each of the Series B
Securities at all times shall contain in a conspicuous manner the following
legend]
THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE
EXTENT SET FORTH IN ARTICLE THIRTEEN OF THE INDENTURE TO THE OBLIGATIONS
(INCLUDING INTEREST) OWED BY THE COMPANY AND CERTAIN OF ITS SUBSIDIARIES TO
ALL SENIOR INDEBTEDNESS; AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF,
SHALL BE BOUND BY THE PROVISIONS OF THE SUBORDINATION AS SET FORTH IN SAID
ARTICLE THIRTEEN OF THE INDENTURE.
33
NEWPARK RESOURCES, INC.
8 5/8% SENIOR SUBORDINATED NOTE DUE 2007, SERIES B
CUSIP NO. __________
No. _______
$___________________
Newpark Resources, Inc., a Delaware corporation (herein called the
"Company", which term includes any successor person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to ________
or registered assigns, the principal sum of ________ United States dollars [IF
THE SERIES B SECURITY IS A GLOBAL SECURITY, THEN INSERT THE FOLLOWING: , or such
other principal amount (which, when taken together with the principal amounts of
all other Outstanding Securities, shall not exceed $125,000,000 less the
principal amount of Securities redeemed by the Company in accordance with the
Indenture) as may be set forth by the Security Registrar on Appendix A hereto in
accordance with the Indenture,] on December 15, 2007, at the office or agency of
the Company referred to below, and to pay interest thereon from December 17,
1997, or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on June 15 and December 15 in each year,
commencing June 15, 1998 at the rate of 8 5/8% per annum, in United States
dollars, until the principal hereof is paid or duly provided for; provided that
to the extent interest has not been paid or duly provided for with respect to
the Series A Security exchanged for this Series B Security, interest on this
Series B Security shall accrue from the most recent Interest Payment Date to
which interest on the Series A Security which was exchanged for this Series B
Security has been paid or duly provided for. Interest shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
This Series B Security was issued pursuant to the Exchange Offer pursuant
to which the 8 5/8% Senior Subordinated Notes due 2007, Series A, and related
Guarantees (herein called the "Series A Securities") in like principal amount
were exchanged for the Series B Securities and related Guarantees. The Series B
Securities rank pari passu in right of payment with the Series A Securities.
In addition, for any period in which the Series A Security exchanged for
this Series B Security was outstanding, if either (a) the Exchange Offer
Registration Statement was not filed with the Commission on or prior to the 45th
calendar day following the date of original issue of the Series A Security, (b)
the Exchange Offer registration Statement had not been declared effective on or
prior to the 105th calendar day following the date of original issue of the
Series A Security or (c) the Exchange Offer was not consummated on or prior to
the 135th calendar day following the date of original Issue of the Series A
Security or a Shelf Registration Statement was not declared effective on or
prior to the 135th calendar day following the date of original issue of the
Series A Security (each such event referred to in clauses (a) through (c) above
a "Registration Default"), the interest rate borne by the Series A Securities
shall be increased ("Additional Interest") by one-quarter of one percent per
annum upon the occurrence of each Registration Default, which rate (as increased
as aforesaid) will increase by one quarter of one percent each 90-day period
that such Additional Interest continues to accrue under any such circumstance,
provided that the maximum aggregate increase in the interest rate will in no
event exceed one percent (1%) per annum, including any increases pursuant to the
provisions of the following paragraph. Following the cure of all Registration
Defaults the accrual of Additional Interest will cease and the interest rate
will revert to the original rate; provided that, to the extent interest at such
increased interest rate has been paid or duly provided for with respect to the
Series A Security, interest at such increased interest rate, if any, on this
Series B Security shall accrue from the most recent Interest Payment Date to
which such interest on the Series A Security has been paid or duly provided for;
provided, however,
34
that, if after any such reduction in interest rate, a different event specified
in clause (a), (b) or (c) above occurs, the interest rate shall again be
increased pursuant to the foregoing provisions.
If the Shelf Registration Statement is unusable by the Holders for any
reason, and the aggregate number of days in any consecutive twelve-month period
for which the Shelf Registration Statement shall not be usable exceeds 30 days
in the aggregate then the interest rate borne by the Securities held by such
Holders will be increased by 0.25% per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) beginning on the
31st such date that such Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal amount
of the Securities at the beginning of each subsequent 90-day period, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one percent (1%) per annum, including any increases pursuant to the provisions
of the preceding paragraph. Any amounts payable under this paragraph shall also
be deemed "Additional Interest" for purposes of this Security. Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by
the Securities will be reduced to the original interest rate if the Company is
otherwise in compliance with this Agreement at such time. Additional Interest
shall be computed based on the actual number of days elapsed in each 90-day
period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three Business Days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Additional Interest shall be paid by
depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Securities, on or before the applicable semiannual Interest Payment
Date, immediately available funds in sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each
Interest Payment Date to the record Holder of Securities entitled to receive the
interest payment to be paid on such date as set forth in the Indenture. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the day following the applicable Event Date.
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 any Predecessor Security) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the June 1 or December 1 (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 and interest on such defaulted interest at the
interest rate borne by the Series B Securities to the extent lawful, shall
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 any Predecessor
Security) 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 this, Indenture.
Payment of the principal of, premium, if any, and interest on, this
Security and exchange or transfer of the Security, will be made at the office or
agency of the Company in The City of New York maintained for such purpose, or at
such other office or agency as may be maintained 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. Payment of interest will be
made (i) in respect of Securities held by the Depositary or its nominee, in same
day funds on or prior to the respective Interest Payment Dates and (ii) in
respect of Securities held of record by Holders other than the Depositary or its
nominee, in same day funds at the office of the Trustee in New York, New York or
at such other office or agency of the Company as it shall maintain for that
purpose pursuant to Section 1002, provided, however, that, at the option of the
Company, interest on any Security held of record by Holders other than the
Depositary or its nominee may be paid by mailing checks to the addresses of the
Holders thereof as such addresses appear in the Security Register.
35
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.
This Security is entitled to the benefits of Guarantees by each of the
Guarantors of the punctual payment when due of the Indenture Obligations made in
favor of the Trustee for the benefit of the Holders. Reference is hereby made
to Article Fourteen of the Indenture for a statement of the respective rights,
limitations of rights duties and obligations under the Guarantees of each of the
Guarantors.
Unless the certificate of authentication hereon has been duly executed by
the Trustee referred to on the reverse hereof or by the authenticating agent
appointed as provided in the Indenture by manual signature of an authorized
signer, this Security shall not be entitled to any benefit under the Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: NEWPARK RESOURCES, INC.
By:
------------------------------------
Title:
------------------------------------
Attest:
------------------------------
Authorized Officer
36
[IF THE SERIES B SECURITY IS A GLOBAL SECURITY,
THEN INSERT THE FOLLOWING AS APPENDIX A THERETO]
APPENDIX A
EXCHANGES FOR GLOBAL NOTES OR PHYSICAL NOTES
The following increases or decreases in the principal amount of this Global
Note in accordance with the Indenture have been made:
Increase (decrease)
in the principal New principal amount of Notation made by or on
amount of this this Global Note following behalf of the Security
Date Made Global Note such increase or decrease Registrar
---------- -------------------- -------------------------- ------------------------
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
______________________________________________________________________________________________
37
Section 203. Form of Reverse of Securities.
(a) The form of the reverse of the Series A Securities shall be
substantially as follows:
NEWPARK RESOURCES, INC.
8 5/8% Senior Subordinated Note due 2007, Series A
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 5/8% Senior Subordinated Notes due 2007, Series A
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $125,000,000,
issued under and subject to the terms of an indenture (herein called the
"Indenture") dated as of December 17, 1997, among the Company, the Guarantors
and State Street Bank and Trust Company, 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,
obligations 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.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities are subject to redemption at any time on or after December
15, 2002 at the option of the Company, in whole or in part, on not less than 30
nor more than 60 days' prior notice to the Holders by first-class mail, in
amounts of $1,000 or an integral multiple thereof, at the following redemption
prices (expressed as percentages of the principal amount), if redeemed during
the 12-month period beginning December 15 of the years indicated below:
Redemption
Year Price
---- -----------
2002 104.313%
2003 102.875%
2004 101.438%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to but not including the Redemption Date
(subject to the rights of Holders of record on relevant Regular Record Dates or
Special Record Dates to receive interest due on an Interest Payment Date).
At any time prior to December 1, 2000, the Company may, at its option, use
the net proceeds of one or more Public Equity Offerings to redeem up to an
aggregate of 35% of the aggregate principal amount of Securities originally
issued under the Indenture at a redemption price equal to 108.625% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that at least $81.25 million aggregate
principal amount of the Securities remains outstanding immediately after the
occurrence of such redemption. In order to effect the foregoing redemption, the
Company must mail a notice of redemption no later than 30 days after the closing
of the related Public Equity Offering and must consummate such redemption within
60 days of the closing of the Public Equity Offering.
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities or portions thereof to be redeemed in compliance with any
applicable requirements of the principal national securities exchange, if any,
on which the Securities are listed or, if the Securities are not then listed on
a national securities exchange (or if the Securities are so listed but such
exchange does not impose
38
requirements with respect to the selection of debt securities for redemption),
on a pro rata basis, by lot or by such method as the Trustee in its sole
discretion shall deem fair and appropriate.
Upon the occurrence of a Change of Control, the Company shall be obligated
to make an offer to purchase, and subject to provisions of Section 1011 of the
Indenture, must purchase, all Outstanding Securities at a purchase price in cash
in an amount equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase, pursuant to a Change of
Control Offer in accordance with the procedures set forth in the Indenture.
Under certain circumstances, if the Net Cash Proceeds received by the
Company from any Asset Sale, which proceeds are not used to repay Senior
Indebtedness or invested in properties and assets that were the subject of the
Asset Sale or which will be used in the business of the Company or its
Subsidiaries existing on the date of the Indenture or in businesses reasonably
related thereto, exceeds a specified amount, the Company will be required to
apply such proceeds to the repurchase of the Securities and certain Indebtedness
ranking pari passu in right of payment to the Securities.
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such Securities of
record as of the close of business on the relevant Regular Record Date or
Special Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption and payment provision are made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal amount
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 (including certain amendments
permitted without the consent of any Holders) 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 under the Indenture and the
Securities and the Guarantees at any time by the Company and the Trustee with
the consent of the Holders of a specified percentage 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 and the
Guarantors with certain provisions of the Indenture and the Securities and the
Guarantees and certain past Defaults under the Indenture and the Securities and
the Guarantees and their consequences. Any such consent or waiver by or on
behalf of 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 herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
The Series A Securities are, to the extent and manner provided in Article
Thirteen of the Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
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, any
Guarantor or any other obligor on the Securities (if such Guarantor or such
other obligor is obligated to make payments in respect of the Securities), which
is absolute and unconditional, to pay the principal of, premium, if any, and
interest on, this Security at
39
the times, place and rate, and in the coin or currency, herein prescribed,
subject to the subordination provisions of the Indenture.
If this Series A Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Security is registrable on the Security Register of the Company, upon
surrender of this Security for registration of transfer at the office or agency
of the Company maintained for such purpose in The City of New York or at such
other office or agency of the Company as may be maintained 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 its 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.
If this Series A Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the Holder,
provided it is a "Qualified Institutional Buyer" within the meaning of Rule 144A
under the Securities Act or a Non-U.S. Person, may exchange this Series A
Security for a Book-Entry Security by instructing the Trustee (by completing the
Transferee Certificate in the form in Appendix I) to arrange for such Series A
Security to be represented by a beneficial interest in a Rule 144A Global
Security or a Regulation S Global Security, as the case may be, in accordance
with the customary procedures of the Depository, unless the Company has elected
not to issue a Rule 144A Global Security or a Regulation S Global Security, as
the case may be.
If this Series A Security is a Rule 144A Global Security, it is
exchangeable for a Series A Security in certificated form as provided in the
Indenture and in accordance with the rules and procedures of the Trustee and the
Depositary. In addition, certificated securities shall be transferred to all
beneficial holders in exchange for their beneficial interests in the Rule 144A
Global Securities or the Regulation S Global Securities if (x) the Depositary
notifies the Company that it is unwilling or unable to continue as depository
for such Global Security and a successor depositary is not appointed by the
Company within 90 days or (y) there shall have occurred and be continuing an
Event of Default and the Security Registrar has received a request from the
Depositary. Upon any such issuance, the Trustee is required to register such
certificated Series A Securities in the name of, and cause the same to be
delivered to, such person or persons (or the nominee of any thereof). All such
certificated Series A Securities would be required to include the Private
Placement Legend.
Series A Securities in certificated form 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, the Series A Securities are exchangeable for a like aggregate
principal amount of Securities of a differing authorized denomination, as
requested by the Holder surrendering the same.
At any time when the Company is not subject to Sections 13 or 15(d) of the
Exchange Act, upon the written request of a Holder of a Series A Security, the
Company will promptly furnish or cause to be furnished such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto) to such Holder or to a prospective purchaser of such Series A
Security who such Holder informs the Company is reasonably believed to be a
"Qualified Institutional Buyer" within the meaning of Rule 144A under the
Securities Act, as the case may be, in order to permit compliance by such Holder
with Rule 144A under the Securities Act.
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, assessment or other governmental charge payable in connection
therewith.
40
Prior to due presentment of this Security for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the person in whose name his Security is registered as
the owner hereof for all purposes, whether or not this Security is overdue, and
neither the Company, any Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
A DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY, ANY
GUARANTOR OR THE TRUSTEE, SHALL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF
THE COMPANY, ANY GUARANTOR OR THE TRUSTEE, UNDER THE INDENTURE OR THIS SECURITY
OR FOR ANY CLAIM BASED ON, IN RESPECT OF OR BY REASON OF, SUCH OBLIGATIONS OR
THEIR CREATION. EACH HOLDER BY ACCEPTING THIS SECURITY WAIVES AND RELEASES ALL
SUCH LIABILITY. THE WAIVER AND RELEASE ARE PART OF THE CONSIDERATION FOR THE
ISSUE OF THE SECURITIES AND THE GUARANTEES.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
All terms used in this Security which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[The Transferee Certificate, in the Form of Appendix I hereto, will be
attached to the Series A Security.]
(b) The form of the reverse of the Series B Securities shall be
substantially as follows:
NEWPARK RESOURCES, INC.
8 5/8% Senior Subordinated Note due 2007, Series B
This Security is one of a duly authorized issue of Securities of the
Company designated as its 8 5/8% Senior Subordinated Notes due 2007, Series B
(herein called the "Securities"), limited (except as otherwise provided in the
Indenture referred to below) in aggregate principal amount to $125,000,000,
issued under and subject to the terms of an indenture (herein called the
"Indenture") dated as of December 17, 1997, among the Company, the Guarantors
and State Street Bank and Trust Company, 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,
obligations 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.
The Indenture contains provisions for defeasance at any time of (a) the
entire Indebtedness on the Securities and (b) certain restrictive covenants and
related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
The Securities are subject to redemption at any time on or after December
15, 2002, at the option of the Company, in whole or in part, on not less than 30
nor more than 60 days' prior notice to the Holders by first-class mail, in
amounts of $1,000 or an integral multiple thereof, at the following redemption
prices (expressed as percentages of the principal amount), if redeemed during
the 12-month period beginning December 15 of the years indicated below:
41
Redemption
Year Price
---- -----
2002 104.313%
2003 102.875%
2004 101.438%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to but not including the Redemption Date
(subject to the rights of Holders of record on relevant Regular Record Dates or
Special Record Dates to receive interest due on an Interest Payment Date).
At any time prior to December 1, 2000, the Company may, at its option, use
the net proceeds of one or more Public Equity Offerings to redeem up to an
aggregate of 35% of the aggregate principal amount of Securities originally
issued under the Indenture at a redemption price equal to 108.625% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the Redemption Date; provided that at least $81.25 million aggregate
principal amount of the Securities remains outstanding immediately after the
occurrence of such redemption. In order to effect the foregoing redemption, the
Company must mail a notice of redemption no later than 30 days after the closing
of the related Public Equity Offering and must consummate such redemption within
60 days of the closing of the Public Equity Offering.
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities or portions thereof to be redeemed in compliance with any
applicable requirements of the principal national securities exchange, if any,
on which the Securities are listed or, if the Securities are not then listed on
a national securities exchange (or if the Securities are so listed but such
exchange does not impose requirements with respect to the selection of debt
securities for redemption), on a pro rata basis, by lot or by such method as the
Trustee in its sole discretion shall deem fair and appropriate.
Upon the occurrence of a Change of Control, the Company shall be obligated
to make an offer to purchase, and subject to provisions of Section 1011 of the
Indenture, must purchase, all Outstanding Securities at a purchase price in cash
in an amount equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of purchase, pursuant to a Change of
Control Offer in accordance with the procedures set forth in the Indenture.
Under certain circumstances, if the Net Cash Proceeds received by the
Company from any Asset Sale, which proceeds are not used to repay Senior
Indebtedness or invested in properties and assets that were the subject of the
Asset Sale or which will be used in the business of the Company or its
Subsidiaries existing on the date of the Indenture or in businesses reasonably
related thereto, exceeds a specified amount the Company will be required to
apply such proceeds to the repurchase of the Securities and certain Indebtedness
ranking pari passu in right of payment to the Securities.
In the case of any redemption or repurchase of Securities in accordance
with the Indenture, interest installments whose Stated Maturity is on or prior
to the Redemption Date will be payable to the Holders of such Securities of
record as of the close of business on the relevant Regular Record Date or
Special Record Date referred to on the face hereof. Securities (or portions
thereof) for whose redemption and payment provision is made in accordance with
the Indenture shall cease to bear interest from and after the Redemption Date.
In the event of redemption or repurchase of this Security in accordance
with the Indenture in part only, a new Security or Securities for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.
If an Event of Default shall occur and be continuing, the principal amount
of all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
42
The Indenture permits, with certain exceptions (including certain
amendments permitted without the consent of any Holders) 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 under the Indenture and
the Securities and the Guarantees at any time by the Company and the Trustee
with the consent of the Holders of a specified percentage 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 and the
Guarantors with certain provisions of the Indenture and the Securities and the
Guarantees and certain past Defaults under the Indenture and the Securities and
the Guarantees and their consequences. Any such consent or waiver by or on
behalf of 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 herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
The Series B Securities are, to the extent and manner provided in Article
Thirteen of the Indenture, subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
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, any
Guarantor or any other obligor on the Securities (if such Guarantor or such
other obligor is obligated to make payments in respect of the Securities), 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, subject to the subordination provisions of the
Indenture.
If this Series B Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the transfer of
this Series B Security is registrable on the Security Register of the Company,
upon surrender of this Series B Security for registration of transfer at the
office or agency of the Company maintained for such purpose in The City of New
York or at such other office or agency of the Company as may be maintained 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 its attorney duly authorized in writing, and
thereupon one or more new Series B Securities, of authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
If this Series B Security is in certificated form, then as provided in the
Indenture and subject to certain limitations therein set forth, the Holder may
exchange this Series B Security for a Book-Entry Security by instructing the
Trustee to arrange for such Series B Security to be represented by a beneficial
interest in a Series B Global Security in accordance with the customary
procedures of the Depository, unless the Company has elected not to issue a
Series B Global Security.
If this Series B Security is a Series B Global Security, it is exchangeable
for a Series B Security in certificated form as provided in the Indenture and in
accordance with the rules and procedures of the Trustee and the Depositary. In
addition, certificated securities shall be transferred to all beneficial holders
in exchange for their beneficial interests in the Series B Global Security if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as depository for the Series B Global Security and a successor
depositary is not appointed by the Company within 90 days or (y) there shall
have occurred and be continuing an Event of Default and the Security Registrar
has received a request from the Depositary. Upon any such issuance, the Trustee
is required to register such certificated Series B Securities in the name of,
and cause the same to be delivered to, such person or persons (or the nominee of
any thereof).
43
Series B Securities in certificated form 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, the Series B Securities are exchangeable for a like aggregate
principal amount of Securities of a differing authorized denomination, as
requested by the Holder surrendering the same.
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, assessment or other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
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 is overdue, and
neither the Company, any Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
A DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY, ANY
GUARANTOR OR THE TRUSTEE, SHALL NOT HAVE ANY LIABILITY FOR ANY OBLIGATIONS OF
THE COMPANY, ANY GUARANTOR OR THE TRUSTEE, UNDER THE INDENTURE OR THIS SECURITY
OR FOR ANY CLAIM BASED ON, IN RESPECT OF OR BY REASON OF, SUCH OBLIGATIONS OR
THEIR CREATION. EACH HOLDER BY ACCEPTING THIS SECURITY WAIVES AND RELEASES ALL
SUCH LIABILITY. THE WAIVER AND RELEASE ARE PART OF THE CONSIDERATION FOR THE
ISSUE OF THE SECURITIES AND THE GUARANTEES.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
All terms used in this Security which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.
[The Transferee Certificate, in the form of Appendix II hereto, will be
attached to the Series B Security.]
Section 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be included on the form
of the face of the Securities substantially in the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
[Series A Securities]
This is one of the 8 5/8% Senior Subordinated Notes due 2007, Series A
referred to in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By:
-----------------------------------
Authorized Signer
44
[Series B Securities]
This is one of the 8 5/8% Senior Subordinated Notes due 2007, Series B
referred to in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By:
------------------------------------
Authorized Signer
Section 205. Form of Guarantee of Each of the Guarantors.
The form of Guarantee shall be set forth on the Securities substantially as
follows:
GUARANTEES
For value received, each of the undersigned hereby absolutely,
unconditionally and irrevocably guarantees, jointly and severally, to the holder
of this Security the payment of principal of, premium, if any, and interest on
this Security upon which these Guarantees are endorsed in the amounts and at the
time when due and payable whether by declaration thereof, or otherwise, and
interest on the overdue principal and interest, if any, of this Security, if
lawful, and the payment or performance of all other obligations of the Company
under the Indenture or the Securities, to the holder of this Security and the
Trustee, all in accordance with and subject to the terms and limitations of this
Security and Article Thirteen and Article Fourteen of the Indenture. These
Guarantees will not become effective until the Trustee duly executes the
certificate of authentication on this Security. THIS GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES THEREOF. The Indebtedness
evidenced by these Guarantees are, to the extent and in the manner provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Guarantor Senior Indebtedness (as defined in the Indenture),
whether outstanding on the date of the Indenture or thereafter, and the
Guarantees are issued subject to such provisions.
Dated: [EACH GUARANTOR]
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
Attest:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
45
Section 206. Form of Option of Holder to Elect Purchase.
The form of Option of Holder to Elect Purchase Form shall be set forth on
the Securities substantially as follows:
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 1011 or Section 1012, as applicable, of the Indenture, check the
Box: [ ].
If you wish to have a portion of this Security (which has an original
principal amount of $1,000 or an integral multiple thereof) purchased by the
Company pursuant to Section 1011 or Section 1012 as applicable, of the
Indenture, state the amount (in original principal amount):
$ ______________
Date: Your Signature:
------------------- -------------------------
Taxpayer Identification No.:
------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
--------------------------------------
[Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
46
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $125,000,000 in principal amount of
Series A Securities and $125,000,000 in principal amount of Series B Securities,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 303,
304, 305, 306, 307, 308, 906, 1011, 1012 or 1108.
The Series A Securities shall be known and designated as the 8 5/8% Series
A Senior Subordinated Notes due 2007, Series A of the Company. The Stated
Maturity of the Series A Securities shall be December 15, 2007, and the Series A
Securities shall each bear interest, at the rate of 8 5/8% per annum, as such
interest rate may be adjusted as set forth in the Series A Security, from
December 17, 1997, or from the most recent Interest Payment Date to which
interest has been paid, as the case may be, payable semiannually on June 15 and
December 15, in each year commencing June 15, 1998, until the principal thereof
is paid or duly provided for. Interest on any overdue principal, interest (to
the extent lawful) or premium, if any, shall be payable on demand.
The Series B Securities shall be known and designated as the 8 5/8% Series
B Senior Subordinated Notes due 2007, Series B of the Company. The Stated
Maturity of the Series B Securities shall be December 15, 2007, and the Series B
Securities shall each bear interest at the rate of 8 5/8% per annum, as such
interest rate may be adjusted as set forth in the Series B Security, from their
issuance date or from the most recent Interest Payment Date to which interest
has been paid, as the case may be, payable semiannually on June 15 and December
15, in each year commencing June 15, 1998, until the principal thereof is paid
or duly provided for. Interest on any overdue principal, interest (to the extent
lawful) or premium, if any, shall be payable on demand.
The principal of and premium, if any, and interest on the Securities shall
be payable (i) in respect of Securities held of record by the Depositary or its
nominee in same day funds on or prior to the respective payment dates and (ii)
in respect of Securities held of record by Holders other than the Depositary or
its nominee in same day funds at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that at the option
of the Company, payment of interest to Holders of record other than the
Depositary 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
will be exchangeable and transferable at an office or agency of the Company in
The City of New York maintained for such purposes.
For all purposes hereunder, the Series A Securities and the Series B
Securities will be treated as one class and are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
The Securities shall be subject to repurchase by the Company pursuant to an
Offer as provided in Section 1012.
The Company shall offer to purchase, and shall purchase all Outstanding
Securities, in the event of a Change of Control, pursuant to the terms of
Section 1011.
The Securities shall be redeemable as provided in Article Eleven and in the
Securities.
47
The Indebtedness evidenced by the Securities shall be subordinated in right
of payment to Senior Indebtedness as provided in Article Thirteen.
At the election of the Company, the entire Indebtedness on the Securities
or certain of the Company's obligations and covenants and certain Events of
Default thereunder may be defeased as provided in Article Four.
Section 302. Denominations.
The Securities shall be issuable only in fully registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by one of its
Chairman of the Board, its President, its Chief Executive Officer, its Chief
Financial Officer or one of its Vice Presidents attested by its Secretary or one
of its Assistant Secretaries. The signatures of any 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 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 Company to the
Trustee (with Guarantees endorsed thereon) 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 provided in this Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security or Guarantee endorsed thereon 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 duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
In case the Company or any Guarantor, pursuant to Article Eight, shall, in
a single transaction or through a series of related transactions, be
consolidated or merged with or into any other person or shall sell, assign,
convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets to any person, and the successor person resulting from
such consolidation or surviving such merger, or into which the Company or such
Guarantor shall have been merged, or the successor person which shall have
participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight, any of the Securities authenticated
or delivered prior to such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition may, from time to time, at the request of
the successor person, be exchanged for other Securities executed in the name of
the successor person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered
48
in any new name of a successor person pursuant to this Section 303 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities on behalf of the Trustee. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Security Registrar or Paying
Agent to deal with the Company and its Affiliate.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten 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 conclusively evidenced by their
execution of such Securities. Every such temporary Security shall be executed
by the Company and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Security or Securities in lieu of which it is issued.
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 the office
or agency of the Company designated for such purpose pursuant to Section 1002,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, 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.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause the Trustee to keep, so long as it is the Security
Registrar, at the Corporate Trust Office of the Trustee, or such other office as
the Trustee may designate, a register (the register maintained in such office or
in any other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "Security Register") in which, subject to such
reasonable regulations as the Security Registrar may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Trustee shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. The
Company may appoint one or more co-Security Registrars. At all reasonable times
the Security Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated pursuant to Section 1002, 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 the same
series of any authorized denomination or denominations, of a like aggregate
principal amount.
Furthermore, any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in a Security shall be required to be reflected in a book
entry.
49
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Series A Securities for Series B
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, 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, repurchase or redemption, shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, except in certain circumstances
for any tax, assessment or other governmental charge that may be imposed in
connection therewith, other than exchanges pursuant to Sections 303, 304, 305,
308, 906, 1011, 1012 or 1108 not involving any transfer.
Neither the Company nor the Security Registrar shall be required (a) to
issue, register the transfer of or exchange any Security during a period
beginning at the opening of business 15 days before the mailing of a notice of
redemption of the Securities selected for redemption under Section 1104 and
ending at the close of business on the day of such mailing, or (b) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part except the unredeemed portion of Securities being redeemed in part.
Every Security shall be subject to the restrictions on transfer provided in
the legend required to be set forth on the face of each Security pursuant to
Section 202, and to the restrictions set forth in this Section 305, and the
Holder of each Security, by such Holder's acceptance thereof (or interest
therein), agrees to be bound by such restrictions on transfer.
The restrictions imposed by this Section 305 upon the transferability of
any particular Security shall cease and terminate on (a) the later of December
17, 1999 or two years after the last date on which the Company or any Affiliate
of the Company was the owner of such Security (or any predecessor of such
Security) or (b) (if earlier) if and when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
pursuant to Rule 144 or Rule 904 under the Securities Act (or any successor
provision), unless the Holder thereof is an affiliate of the Company within the
meaning of Rule 144 (or such successor provisions). Any Security as to which
such restrictions on transfer shall have expired, in accordance with their terms
or shall have terminated may, upon surrender of such Security for exchange to
the Security Registrar in accordance with the provision of this Section 305
(accompanied, if such restrictions on transfer have terminated pursuant to Rule
144 or Rule 904 (or any successor provision), by an Opinion of Counsel
satisfactory to the Company and the Trustee, to the effect that the transfer of
such Security has been made in compliance with Rule 144 or Rule 904 (or any such
successor provision)), be exchanged for a new Security of like tenor and
aggregate principal amount, which shall not bear the Private Placement Legend.
The Company shall inform the Trustee of the effective date of any Registration
Statement registering the Securities under the Securities Act no later than two
Business Days after such effective date.
50
Except as provided in the preceding paragraph, any Security authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu
of, any U.S. Global Security, whether pursuant to this Section 305, Section 304,
308, 906 or 1108 or otherwise, shall also be a U.S. Global Security and bear the
legend specified in Section 202.
Section 306. Book-Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in the name of
the Depositary for such Global Security or the nominee of such Depositary, (ii)
be deposited with, or on behalf of, the Depositary or with the Trustee as
custodian for such Depositary and (iii) bear legends as set forth in Section
202.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Security, and the Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Transfers of each Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to the Depositary, its successors or
their respective nominees. Interests of beneficial owners in each Global
Security may be transferred in accordance with the rules and procedures of the
Depositary and the provisions of Section 307. Beneficial owners of interests in
the Rule 144A Global Securities and Series B Global Securities may obtain, in
certificated form, Securities in registered form without coupons (the "Physical
Securities") in exchange for their beneficial interests in the Rule 144A Global
Securities or Series B Global Securities, as applicable, upon request in
accordance with the Depositary's and the Security Registrar's procedures. In
connection with the execution, authentication and delivery of such Physical
Securities, the Security Registrar shall reflect on Appendix A to the relevant
Global Security a decrease in the principal amount of such Global Security equal
to the principal amount of such Physical Securities and the Company shall
execute and the Trustee shall authenticate and deliver one or more Physical
Securities having an equal aggregate principal amount. In addition, Physical
Securities shall be issued to all beneficial owners in exchange for their
beneficial interests in any Global Security if (i) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security and a successor Depositary is not appointed by the Company within 90
days of such notice or (ii) an Event of Default has occurred and is continuing
and the Security Registrar has received a request from the Depositary to issue
Physical Securities.
(c) In connection with any transfer of a portion of the beneficial interest
in a Global Security pursuant to Section 306(b) to beneficial owners who are
required to hold Physical Securities, the Security registrar shall reflect on
its books and records the date and a decrease in the principal amount of such
Global Security in an amount equal to the principal amount of the beneficial
interest in such Global Security to be transferred, and the Company shall
execute, and the Trustee shall authenticate and deliver, one or more Physical
Securities of like tenor and amount.
(d) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to Section 306(b), such Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
such Global Security an equal aggregate principal amount of Physical Securities
of authorized denominations.
51
(e) Any Physical Security constituting a "restricted security" within the
meaning of Rule 144(a)(3) under the Securities Act delivered in exchange for an
interest in a Global Security pursuant to Section 306(c) or Section 306(d)
shall, except as otherwise provided by Section 307, bear the Private Placement
Legend.
(f) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 307. Special Transfer Provisions.
Unless and until (i) an Initial Security is sold under an effective
Registration Statement, or (ii) an Initial Security is exchanged for a Series B
Security in connection with the Exchange Offer, in each case pursuant to the
Registration Rights Agreement, the following provisions shall apply:
(a) Transfers to QIBs. The following provisions shall apply with respect
to the registration of any proposed transfer of an Initial Security to a QIB
(excluding Non-U.S. Persons):
(i) The Security Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement Legend
if (x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Security, or portion
thereof, at any time on or prior to the second anniversary of the Issue
Date and such transfer can otherwise lawfully be made under the Securities
Act without registering such Initial Security thereunder or (y) such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Initial Security stating, or has otherwise
advised the Company and the Security Registrar in writing, that the sale
has been made in compliance with the provisions of Rule 144A to the
transferee who has signed the certification provided for on the form of
Initial Security stating, or has otherwise advised the Company and the
Security Registrar in writing,that it is purchasing the Initial Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it, or the person on whose behalf it is
acting with respect to any such account, is a QIB within the meaning of
Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding
the Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the exemption
from registration provided by Rule 144A.
(ii) If the proposed transferee is an Agent Member, and the Initial
Security to be transferred consists of Physical Securities which after
transfer are to be evidenced by an interest in the Rule 144A Global
Security, upon receipt by the Security Registrar of instructions given in
accordance with the Depositary's and the Security Registrar's procedures
therefor, the Security Registrar shall reflect on Appendix A to the Rule
144A Global Security the date and an increase in the principal amount of
the Rule 144A Global Security in an amount equal to the principal amount of
the Physical Securities to be transferred, and the Trustee shall cancel the
Physical Security so transferred.
(iii) If the proposed transferor is an Agent Member seeking to
transfer an interest in a Global Security, upon receipt by the Security
Registrar of written instructions given in accordance with the Depositary's
and the Security Registrar's procedures, the Security Registrar shall
register the transfer and reflect (A) on Appendix A to Global Security from
which interests are to be transferred the date and a decrease in the
principal amount of the Global Security from which interests are to be
transferred in an amount equal to the principal amount of the Securities to
be transferred and (B) on Appendix A to the Rule 144A Global Security the
date and an
52
increase in the principal amount of the Rule 144A Global Security in an
amount equal to the principal amount of the Global Security to be
transferred.
(b) Transfers to Non-U.S. Persons. The following provisions shall apply
with respect to any transfer of an Initial Security to a Non-U.S. Person:
(i) Prior to January 26, 1998, an owner of a beneficial interest in
the Regulation S Global Security may not transfer such interest to a
transferee that is a U.S. Person or for the account or benefit of a U.S.
Person within the meaning of Rule 902(o) under the Securities Act. During
such time, all beneficial interests in the Regulation S Global Security
shall be transferred only through Cedel or Euroclear, either directly if
the transferor and transferee are participants in such system, or
indirectly through organizations that are participants.
(ii) The Security Registrar shall register the transfer of any Initial
Security, whether or not such Security bears the Private Placement Legend,
if (x) the proposed transferee has delivered to the Security Registrar a
certificate substantially in the form of Exhibit B hereto or (y) the
proposed transferor has delivered to the Security Registrar a certificate
substantially in the form of Exhibit C hereto.
(iii) If the proposed transferee is an Agent Member and the
Securities to be transferred consist of Physical Securities which after
transfer are to be evidenced by an interest in the Regulation S Global
Security, upon receipt by the Security Registrar of (x) written
instructions given in accordance with the Depositary's and the Security
Registrar's procedures and (y) the appropriate certificate required by
clause (y) of paragraph (ii) of this Section 307(b), together with any
required legal opinions and certifications, the Security Registrar shall
register the transfer and reflect on Appendix A to the Regulation S Global
Security the date and an increase in the principal amount of the Regulation
S Global Security in an amount equal to the principal amount of Physical
Securities to be transferred, and the Trustee shall cancel the Physical
Securities so transferred.
(iv) If the proposed transferor is an Agent Member seeking to transfer
an interest in a Global Security, upon receipt by the Security Registrar of
(x) written instructions given in accordance with the Depositary's and the
Security Registrar's procedures and (y) the appropriate certificate
required by clause (y) of paragraph (ii) of this Section 307(b), together
with any required legal opinions and certificates, the Security Registrar
shall register the transfer and reflect (A) on Appendix A to the Global
Security from which interests are to be transferred the date and a decrease
in the principal amount of the Global Security from which such interests
are to be transferred in an amount equal to the principal amount of the
Securities to be transferred and (B) on Appendix A to the Regulation S
Global Security the date and an increase in the principal amount of the
Regulation S Global Security in an amount equal to the principal amount of
the Global Security to be transferred.
(c) Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities not bearing the Private Placement Legend, the
Security Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the registration of transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Security Registrar shall
deliver only Securities that bear the Private Placement Legend unless there is
delivered to the Security Registrar an Opinion of Counsel reasonably
satisfactory to the Company and the Trustee to the effect that neither such
legend nor the related restrictions on transfer are required in order to
maintain compliance with the provisions of the Securities Act.
(d) General. By its acceptance of any Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this
53
Indenture and in the Private Placement Legend and agrees that it will transfer
such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 306 or this Section
307. The Company shall have the right, to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
If Regulation S is amended during the term of this Indenture to alter the
applicable holding period, all reference in this Indenture to a holding period
for Non-U.S. Persons will be deemed to include such amendment.
Section 308. Mutilated, Destroyed, Lost and Stolen Securities.
If (a) any mutilated Security is surrendered to the Trustee, or (b) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company, any Guarantor and the Trustee, such security or indemnity, in each
case, as may be required by them to save each of them harmless, then, in the
absence of notice to the Company, any Guarantor or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company and the
Guarantors shall execute and upon a Company Request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a replacement Security of like
tenor and principal amount, 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 or any Guarantor in its
discretion may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this Section, the
Company may require the payment of a sum sufficient to pay all documentary,
stamp or similar issue or transfer taxes or other governmental charges that may
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement 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 and any Guarantor, and shall be entitled
to all 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.
Section 309. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on the Stated Maturity of such interest shall be paid to the
person in whose name the Security (or any Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest payment.
Payment of interest will be made (i) in respect of Securities held by the
Depositary or its nominee, in same day funds on or prior to the respective
Interest Payment Dates and (ii) in respect of Securities held of record by
Holders other than the Depositary or its nominee, in same day funds at the
office of the Trustee in New York, New York or at such other office or agency of
the Company as it shall maintain for that purpose pursuant to Section 1002;
provided, however, that, at the option of the Company, interest on any Security
held of record by Holders other than the Depositary or its nominee
54
may be paid by mailing checks to the addresses of the Holders thereof as such
addresses appear in the Security Register.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on the Stated Maturity of such interest, and interest on
such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon
herein collectively called "Defaulted Interest"), shall forthwith cease to be
payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
persons in whose names the Securities (or any relevant 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 (not less than 30 days after such notice) of the proposed payment
(the "Special Payment Date"), 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
Special Payment Date, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
Subsection 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 Special Payment
Date 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 in writing of such Special Record Date. In the name and at the
expense of the Company, the Trustee 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 its 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 and Special Payment Date there for
having been so mailed, such Defaulted Interest shall be paid to the persons
in whose names the Securities are registered on such Special Record Date
and shall no longer be payable pursuant to the following Subsection (b).
(b) 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 written notice given by the Company
to the Trustee of the proposed payment pursuant to this Subsection, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 309, 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.
Section 310. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Company, or the Trustee on behalf of the Company,
shall use CUSIP numbers in notices of redemption or exchange as a convenience to
Holders; provided, however, that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption or exchange and
that reliance may be placed only on the other identification numbers printed on
the Securities; and provided further, however, that failure to use CUSIP numbers
in any notice of redemption or exchange shall not affect the validity or
sufficiency of such notice.
55
Section 311. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, any Guarantor, the Trustee and any agent of the Company, any Guarantor
or the Trustee may treat the person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of,
premium, if any, and (subject to Section 309) interest on, such Security and for
all other purposes whatsoever, whether or not such Security is overdue, and
neither the Company, any Guarantor, the Trustee nor any agent of the Company,
any Guarantor or the Trustee shall be affected by notice to the contrary.
Section 312. Cancellation.
All Securities surrendered for payment, purchase, redemption, registration
of transfer or exchange shall be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Company and any Guarantor may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company or such Guarantor may
have acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 312,
except as expressly permitted by this Indenture. All canceled Securities held
by the Trustee shall be destroyed and certification of their destruction
delivered to the Company, unless by a Company Order received by the Trustee
prior to such destruction, the Company shall direct that the canceled Securities
be returned to it. The Trustee shall provide the Company a list of all
Securities that have been canceled from time to time as requested by the
Company.
Section 313. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
ARTICLE FOUR
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may, at its option by Board Resolution, at any time, with
respect to the Securities, elect to have either Section 402 or Section 403 be
applied to all of the Outstanding Securities (the "Defeased Securities"), upon
compliance with the conditions set forth below in this Article Four.
Section 402. Defeasance and Discharge.
Upon the Company's exercise under Section 401 of the option applicable to
this Section 402, the Company, each Guarantor and any other obligor upon the
Securities, if any, shall be deemed to have been discharged from its obligations
with respect to the Defeased Securities on the date the conditions set forth in
Section 404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company, each Guarantor and any other obligor upon the
Securities shall be deemed to have paid and discharged the entire Indebtedness
represented by the defeased Securities, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 405 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company and
upon Company Request, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of
56
Holders of Defeased Securities to receive, solely from the trust fund described
in Section 404 and as more fully set forth in such Section, payments in respect
of the principal of, premium, if any, and interest on, such Securities, when
such payments are due, (b) the Company's obligations with respect to such
Defeased Securities under Sections 304, 305, 308, 1002 and 1003, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including,
without limitation, the Trustee's rights under Section 607, and (d) this Article
Four. Subject to compliance with this Article Four, the Company may exercise
its option under this Section 402 notwithstanding the prior exercise of its
option under Section 403 with respect to the Securities.
Section 403. Covenant Defeasance.
Upon the Company's exercise under Section 401 of the option applicable to
this Section 403, the Company and each Guarantor shall be released from its
obligations under any covenant contained in Sections 1005 through 1019(a),
inclusive, with respect to the Defeased Securities on and after the date the
conditions set forth in Section 404 are satisfied (hereinafter, "covenant
defeasance"), and the Defeased Securities shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Defeased Securities, the Company and each Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501(c), but, except as specified above, the remainder of this
Indenture and such Defeased Securities shall be unaffected thereby.
Section 404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 402
or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities, (a) United States dollars in an
amount, (b) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms and
with no further reinvestment will provide, not later than one day before the due
date of any payment, money in an amount, or (c) a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee to pay and
discharge, the principal of, premium, if any, and interest on, the Defeased
Securities, on the Stated Maturity of such principal or interest (or on any date
after December 15, 2002 (such date being referred to as the "Defeasance
Redemption Date") if at or prior to electing to exercise either its option
applicable to Section 402 or its option applicable to Section 403, the Company
has delivered to the Trustee an irrevocable notice to redeem all of the
Outstanding Securities on the Defeasance Redemption Date);
(2) In the case of an election under Section 402, the Company shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
stating that (A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (B) since the date hereof, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Independent Counsel in the United
States shall confirm that, the Holders of the Outstanding Securities will not
recognize income, gain or loss for federal income tax
57
purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(3) In the case of an election under Section 403, the Company shall have
delivered to the Trustee an Opinion of Independent Counsel in the United States
to the effect that the Holders of the Outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such
covenant defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred;
(4) No Default or Event of Default shall have occurred and be continuing or
the date of such deposit or insofar as Section 501(h) or (i) is concerned, at
any time during the period ending on the 91st day after the date of deposit (it
being understood that this condition shall not be satisfied until the expiration
of such period);
(5) Such defeasance or covenant defeasance shall not cause the Trustee for
the Securities to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any other securities of the Company or any
Guarantor;
(6) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default under, this Indenture or any other
material agreement or instrument to which the Company, any Guarantor or any
Subsidiary is a party or by which it is bound;
(7) Such defeasance or covenant defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act of 1940, as amended, unless such trust shall be
registered under such Act or exempt from registration thereunder;
(8) The Company shall have delivered to the Trustee an Opinion of
Independent Counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(9) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the holders of the Securities or any Guarantee over the other
creditors of the Company or any Guarantor with the intent of defeating,
hindering, delaying or defrauding creditors of the Company, any Guarantor or
others;
(10) No event or condition shall exist that would prevent the Company from
making payments of the principal of, premium, if any, and interest on the
Securities on the date of such deposit or at any time ending on the 91st day
after the date of such deposit; and
(11) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 402 or the covenant defeasance under Section 403 (as the case may be)
have been complied with.
Opinions of Counsel or Opinions of Independent Counsel required to be
delivered under this Section shall be in form and substance reasonably
satisfactory to the Trustee and may have qualifications customary for opinions
of the type required and counsel delivering such opinions may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
58
Section 405. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all United
States dollars and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee pursuant to Section 404 in respect of the Defeased
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (excluding the Company or any of its
Affiliates acting as Paying Agent), as the Trustee may determine, to the Holders
of such Securities of all sums due and to become due thereon in respect of
principal, premium, if any, and interest, but such money need not be segregated
from other funds except to the extent required by law. Money so held in trust
shall not be subject to the provisions of Article Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
imposed, assessed or for the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
United States dollars or U.S. Government Obligations held by it as provided in
Section 404 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect defeasance or covenant defeasance.
Section 406. Reinstatement.
If the Trustee or Paying Agent is unable to apply any United States dollars
or U.S. Government Obligations in accordance with Section 402, 403 or 1201, as
the case may be by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Securities and any
Guarantor's obligations under this Indenture and any Guarantee shall be revived
and reinstated, with present and prospective effect, as though no deposit had
occurred pursuant to Section 402, 403 or 1201, as the case may be, until such
time as the Trustee or Paying Agent is permitted to apply all such United States
dollars or U.S. Government Obligations in accordance with Section 402, 403 or
1201, as the case may be; provided, however, that if the Company makes any
payment to the Trustee or Paying Agent of principal of, premium, if any, or
interest on any Security following the reinstatement of its obligations, the
Trustee or Paying Agent shall promptly pay any such amount to the Holders of the
Securities and the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the United States dollars and U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default," wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
59
(a) there shall be a default in the payment, when due and payable, of the
principal of, or premium, if any, on, any Security (at its Stated Maturity, upon
optional redemption, upon required purchase, upon acceleration or otherwise);
(b) there shall be a default in the payment, when due and payable, of an
installment of interest on any Security, and such default shall continue for a
period of 30 days or more;
(c) (i) there shall be a default in the performance, or breach, of any
term, covenant or agreement of the Company, any Guarantor or any Restricted
Subsidiary which is not a Guarantor under this Indenture or any Guarantee (other
than a default in the performance, or breach, of a term covenant or agreement
which is specifically dealt with in clause (a) or (b) of this Section 501 or in
clause (ii), (iii) or (iv) of this clause (c)) and such default or breach shall
continue for a period of 30 days after written notice has been given, by
certified mail, (x) to the Company by the Trustee or (y) to the Company and the
Trustee by the holders of at least 25% in aggregate principal amount of the
Outstanding Securities, which notice shall specify that it is a "notice of
default" and shall demand that such a default be remedied; (ii) there shall be a
default in the performance or breach of the provisions described in Article
Eight herein; (iii) the Company shall have failed to make or consummate a Net
Proceeds Offer in accordance with the provisions of Section 1012; or (iv) the
Company shall have failed to make or consummate a Change of Control Offer in
accordance with the provisions of Section 1011;
(d) one or more defaults shall have occurred under any agreements,
instruments, mortgages, bonds, debentures or other evidence of Indebtedness
under which the Company, any Guarantor or any Restricted Subsidiary which is not
a Guarantor then has outstanding Indebtedness in excess of $10,000,000,
individually or in the aggregate, and either (x) the principal amount of such
Indebtedness is already due and payable in full or (y) such default or defaults
have resulted in the acceleration of the maturity of such Indebtedness;
(e) the commencement of proceedings, or the taking of any enforcement
action (including by way of set-off), by any holder or holders of at least
$10,000,000 in aggregate principal amount of Indebtedness of the Company, any
Guarantor or any Restricted Subsidiary which is not a Guarantor, after a default
under such Indebtedness, to retain in satisfaction of such Indebtedness or to
collect on, seize, dispose of or apply in satisfaction of such Indebtedness,
property or assets of the Company, any Guarantor or any Restricted Subsidiary
which is not a Guarantor having a Fair Market Value in excess of $10,000,000
individually or in the aggregate;
(f) one or more judgments, orders or decrees from any court or regulatory
or administrative agency of competent jurisdiction for the payment of money in
excess of $10,000,000, over the coverage under applicable binding insurance
policies issued by a solvent insurer which has accepted such coverage, either
individually or in the aggregate, shall be entered against the Company, any
Guarantor or any Restricted Subsidiary which is not a Guarantor or any of their
respective properties or assets and shall not be discharged, settled or bonded
and either (a) any creditor shall have commenced an enforcement proceeding upon
such judgment, order or decree (other than a judgment, order or decree that is
stayed by reason of pending appeal or otherwise) or (b) there shall have been a
period of 60 consecutive days after the date on which any period for appeal has
expired and during which a stay of enforcement of such judgment or order shall
not be in effect;
(g) any Guarantee shall for any reason cease to be, or shall for any reason
be asserted by any Guarantor or the Company not to be, in full force and effect
and enforceable in accordance with its terms except to the extent provided for
by this Indenture and any such Guarantee;
(h) there shall have been the entry by a court of competent jurisdiction of
(i) a decree or order for relief in respect of the Company, any Guarantor or any
Significant Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or (ii) a decree or order adjudging the
60
Company, any Guarantor or any Significant Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company, any Guarantor or any Significant Subsidiary under any applicable
Federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company, any Guarantor
or any Significant Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their respective
affairs, and any such decree or order for relief shall continue to be in effect,
or any such other decree or order shall be unstayed and in effect, for a period
of 60 consecutive days; or
(i) (i) the Company, any Guarantor or any Significant Subsidiary commences
a voluntary case or proceeding under any applicable Bankruptcy Law or any other
case or proceeding to be adjudicated bankrupt or insolvent, (ii) the Company,
any Guarantor or any Significant Subsidiary consents to the entry of a decree or
order for relief in respect of the Company, such Guarantor or such Significant
Subsidiary 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, (iii) the Company, any Guarantor or any Significant Subsidiary files
a petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Company, any Guarantor or any
Significant Subsidiary (1) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company, any
Guarantor or such Significant Subsidiary or of any substantial part of their
respective properties, (2) makes an assignment for the benefit of creditors or
(3) admits in writing its inability to pay its debts generally as they become
due, or (v) the Company, any Guarantor or any Significant Subsidiary takes any
corporate action in furtherance of any such actions in this clause (i).
Section 502. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than an Event of Default specified in
Sections 501(h) and (i)) shall occur and be continuing with respect to this
Indenture, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities then outstanding may, and the Trustee at the
request of such Holders shall, declare all unpaid principal of, premium, if any,
and accrued interest on all Securities to be due and payable, by a notice in
writing to the Company (and to the Trustee if given by the Holders of the
Securities) and upon any such declaration, such principal, premium, if any, and
interest shall become due and payable immediately. If an Event of Default
specified in clause (h) or (i) of Section 501 occurs with respect to the
Company, any Guarantor or any Significant Subsidiary and is continuing, then all
the Securities shall ipso facto become and be due and payable immediately in an
amount equal to the principal amount of the Securities, together with accrued
and unpaid interest, if any, to the date the Securities become due and payable,
without any declaration or other act on the part of the Trustee or any Holder.
(b) Notwithstanding the foregoing provisions of Section 502(a), if a
declaration of acceleration in respect of the Securities because an Event of
Default specified in (i) clause (d) of Section 501(a) shall have occurred and be
continuing, such Event of Default and any consequential acceleration shall be
automatically rescinded if the Indebtedness that is the subject of such Event of
Default has been repaid, or if the default relating to such Indebtedness is
waived or cured and, if such Indebtedness has been accelerated, the holders
thereof have rescinded their declaration of acceleration in respect of such
Indebtedness (provided, in each case, that such repayment, waiver, cure or
rescission is effected within a period of 10 days from the continuation of such
default beyond the applicable grace period or the occurrence of such
acceleration), or (ii) clause (e) of Section 501(a) shall have occurred and be
continuing, such Event of Default and any consequential acceleration shall be
automatically rescinded if the proceedings or enforcement action with respect to
the Indebtedness that is the subject of such Event of Default is terminated or
rescinded, or such Indebtedness is repaid and only so long as any holder of such
Indebtedness shall not have applied any property or assets referenced in clause
(e) of Section 501(a) in satisfaction of such Indebtedness, and, in the case of
both clauses (i) and (ii) of this Section 502(b),
61
written notice of such repurchase, or cure or waiver and rescission, as the case
may be, shall have been given to the Trustee by the Company or by the requisite
holders of such Indebtedness or a trustee, fiduciary or agent for such holders,
within 45 days after such declaration of acceleration in respect of the
Securities and no other Event of Default shall have occurred which has not been
cured or waived during such 45-day period, and so long as such rescission of any
such acceleration does not conflict with any judgment or decree.
(c) At any time after a declaration of acceleration with respect to the
Securities, but before a judgment or decree for payment of the money due has
been obtained by the Trustee, the Holders of a majority in aggregate principal
amount of the Securities Outstanding, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(i) all sums paid or advanced by the Trustee under this Indenture and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(ii) all overdue interest on all Outstanding Securities,
(iii) the principal of and premium, if any, on any Outstanding
Securities which have become due otherwise than by such declaration of
acceleration and interest thereon at a rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Securities which have become
due otherwise than by such declaration of acceleration;
(2) the rescission would not conflict with any judgment or decree of a
court of competent jurisdiction; and
(3) all Events of Default, other than the non-payment of principal of,
premium, if any, and interest on the Securities that have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513. No such rescission and annulment shall affect any subsequent
Default or impair any right consequent thereon.
Section 503. Other Remedies; Collection Suit by Trustee.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Securities or Guarantees or to
enforce the performance of any provision of the Securities or Guarantees or this
Indenture.
(b) If an event of Default specified in clause (a) or (b) of Section 501
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company and/or any of the Guarantors
for the whole amount of principal of, premium, if any, and accrued interest
remaining unpaid, together with interest on overdue principal and, to the extent
that payment of such interest is lawful, interest on overdue installments of
interest, in each case at the rate per annum borne by the Securities and such
further amounts 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.
62
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor, including any
Guarantor, upon the Securities or the property of the Company or of such other
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 principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal, 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
(b) 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
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee shall consent to
the making of such payments directly to the Holders, to pay the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture, the Securities or the
Guarantees 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 and 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.
Section 506. Application of Money Collected.
Subject to Articles Thirteen and Fourteen of this Indenture, any money
collected by the Trustee pursuant to this Article or otherwise on behalf of the
Holders or the Trustee pursuant to this Article or through any proceeding or any
arrangement or restructuring in anticipation or in lieu of any proceeding
contemplated by this Article shall be applied, subject to applicable law, 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, 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 607;
63
SECOND: To the payment of the amounts then due and unpaid upon the
Securities for principal, premium, if any, and interest, 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, premium, if any, and interest; and
THIRD: The balance, if any, to the person or persons entitled thereto,
including the Company, provided that all sums due and owing to
the Holders and the Trustee have been paid in full as required by
this Indenture.
Section 507. Limitation on Suits.
(a) No Holder of any Securities shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(b) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(c) the Holders of not less than 25% 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 within 30 days after its receipt of such notice;
(d) such Holder or Holders have offered to the Trustee reasonable security
or indemnity to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(e) the Trustee for 30 days after its receipt of such notice, request and
offer (and if requested, provision) of reasonable security or indemnity has
failed to institute any such proceeding; and
(f) no direction inconsistent with such written request has been given to
the Trustee during such 30-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, any Security or any Guarantee 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,
any Security or any Guarantee, except in the manner provided in this Indenture
and for the equal and ratable benefit of all the Holders.
(b) The foregoing provisions of Section 507(a) do not apply, however, to a
suit instituted by a Holder of a Security for the enforcement of the payment of
principal of, premiums, if any, or interest on, such Security on or after the
respective due dates expressed in such Security.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right based on the terms stated herein, which is
absolute and unconditional, to receive payment of the principal of, premium, if
any, and (subject to Section 309) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or the repurchase date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder; provided, however, that such
64
rights shall be subject to the subordination provisions contained in Articles
Thirteen and Fourteen of this Indenture.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture or any Guarantee 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 the Company, any
Guarantor, any other obligor on the Securities, the Trustee and the Holders
shall, subject to any determination in such proceeding, 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.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 308 with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any 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.
Section 512. Control by Holders.
The Holders of not less than a majority in aggregate 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 under this Indenture,
provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture (including, without limitation, Section 507) or any Guarantee,
expose the Trustee to personal liability, or be unduly prejudicial to Holders
not joining therein; and
(b) subject to the provisions of Section 315 of the Trust Indenture Act,
the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all Outstanding
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the principal of, premium, if any, or interest on any
Security; or
65
(b) in respect of a covenant or a provision hereof which under this
Indenture cannot be modified or amended without the consent of the Holder of
each Security Outstanding affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant, but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of, premium, if any, or
interest on, any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
Section 515. Remedies Subject to Applicable Law.
All rights, remedies and powers provided by this Article Five may be
exercised only to the extent that the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE SIX
THE TRUSTEE
Section 601. Duties of Trustee.
Subject to the provisions of Trust Indenture Act Sections 315(a) through
315(d):
(a) if a Default or 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 its exercise thereof as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs;
(b) except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are specifically set
forth in this Indenture and no covenants or obligations shall be implied in
this Indenture that are adverse to the Trustee; and
66
(2) in the absence of bad faith or willful misconduct on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture;
(c) the Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this Subsection (c) does not limit the effect of Subsection (b) of
this Section 601;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith, in accordance with a direction of the
Holders of a majority in principal amount of 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 confirmed
upon the Trustee under this Indenture;
(d) 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 security or indemnity against such risk or liability is not
reasonably assured to it;
(e) whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to Subsections (a),
(b), (c) and (d) of this Section 601; and
(f) the Trustee shall not be liable for interest on any money or assets
received by it except as the Trustee may agree with the Company. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.
Section 602. Notice of Defaults.
Within 90 days after a Responsible Officer of the Trustee receives notice
of the occurrence of any Default or Event of Default, the Trustee shall transmit
by mail to all Holders and any other persons entitled to receive reports
pursuant to Section 313(c) of the Trust Indenture Act as their names and
addresses appear in the Security Register, notice of such Default or Event of
Default hereunder known to the Trustee, unless such Default or Event of Default
shall have been cured or waived; provided however, that, except in the case of a
Default or an Event of Default in the payment of the principal of, premium, if
any, or interest on any Security, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
67
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601 hereof and Trust Indenture Act
Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of Indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any 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 in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence, bad faith or willful misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate statement, instrument, opinion,
report, notice, request, direction, consent, order, approval, appraisal, bond,
debenture, note, coupon, security or other paper or document unless requested in
writing to do so by the Holders of not less than a majority in aggregate
principal amount of the Securities then Outstanding; provided that, if the
payment within a reasonable time to the Trustee of the costs, expenses or
liabilities likely to be incurred by it in the making of such investigation is,
in the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may require
reasonable security or indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such investigation so
requested by the Holders of not less than a majority in aggregate principal
amount of the Securities Outstanding shall be paid by the Company or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Company upon
demand; provided, further, the Trustee in its discretion may make such further
inquiry or investigation into such facts or matters as it may deem fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) 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; and
(h) 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
68
for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
Section 604. Trustee Not Responsible for Recitals, Dispositions of
Securities or Application of Proceeds Thereof.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. Neither the
Trustee nor any Authenticating Agent makes any representations as to the
validity or sufficiency of this Indenture or of the Securities, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in any Statement of Eligibility and Qualification
on Form T-1 supplied to the Company are or will be true and accurate subject to
the qualifications set forth therein. The Trustee shall not be accountable for
the use or application by the Company of Securities or the proceeds thereof nor
shall the Trustee be responsible for any statement in any registration statement
for the Securities under the Securities Act or responsible for the determination
as to which beneficial owners are entitled to receive notices hereunder.
Section 605. Trustee and Agents May Hold Securities; Collections; etc.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, or any Guarantor in its individual
or any other capacity, may become the owner or pledgee of Securities, with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent and, subject to Sections
608 and 613 hereof and Trust Indenture Act Sections 310 and 311, may otherwise
deal with the Company or any Guarantor and receive, collect, hold and retain
collections from the Company or any Guarantor with the same rights it would have
if it were not the Trustee, Paying Agent, Security Registrar or such other
agent.
Section 606. Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Except for funds or securities deposited with the
Trustee pursuant to Articles Four, Eleven and Twelve and Sections 1011 and 1012,
the Trustee shall be required to invest all moneys received by the Trustee,
until used or applied as herein provided, in Cash Equivalents in accordance with
the written directions of the Company.
Section 607. Compensation and Indemnification of Trustee and Its Prior
Claim.
The Company covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and, except as otherwise expressly provided herein, the Company covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as may arise
from its negligence, bad faith or willful misconduct. The Company also
covenants and agrees to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any claim, loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence, bad faith or
willful misconduct on its part arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder including enforcement
69
of this Section 607 and also including any liability which the Trustee may incur
as a result of the failure to withhold, pay or report any tax, assessment or
other governmental charge, and the costs and expenses of defending itself
against or investigating any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The obligations of the
Company under this Section 607 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for reasonable expenses, disbursements and advances shall constitute an
additional obligation hereunder and shall survive the satisfaction and discharge
of this Indenture and the resignation or removal of the Trustee and each
predecessor Trustee. The Company shall have the right to defend any claim or
threatened claim asserted against an indemnitee for which it may seek indemnity,
and the indemnitee shall cooperate in the defense unless, in the reasonable
opinion of the indemnitee's counsel, the indemnitee has an interest materially
adverse to the Company or any Guarantor or a potential conflict of interest
exists between the indemnitee and the Company or any Guarantor, in which case
the indemnitee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel; provided that the Company shall
only be responsible for the reasonable fees and expenses of one law firm (in
addition to local counsel, to the extent such local counsel is reasonably
required) arising out of the same general allegations or circumstances, such law
firm to be designated by the indemnitee and reasonably acceptable to the
Company.
Section 608. Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the Trust
Indenture Act.
Section 609. Trustee Eligibility.
There shall at all times be a Trustee hereunder which shall be eligible to
act as trustee under Trust Indenture Act Section 310(a)(5) and which shall have
a combined capital and surplus of at least $100,000,000, to the extent there is
an institution eligible and willing to serve. If the Trustee does not have an
office in The City of New York, the Trustee may appoint an agent in The City of
New York reasonably acceptable to the Company to conduct any activities which
the Trustee may be required under this Indenture to conduct in The City of New
York. If such Trustee publishes reports of condition at least annually,
pursuant to law or to the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section 609, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 609, the Trustee
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor trustee under Section 611.
(b) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign by giving written notice thereof to the Company. Upon receiving
such notice or resignation, the Company shall promptly appoint a successor
trustee, and a copy of such appointment shall be delivered to the resigning
Trustee and to the successor trustee. If an instrument of acceptance by a
successor trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may, or
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. Such
court may thereupon, after such notice, if any, as it may deem proper, appoint
and prescribe a successor trustee.
70
(c) The Trustee may be removed at any time for any cause or for no cause by
an Act of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Trust
Indenture Act Section 310(b) 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,
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then in any such case, (i) the Company may remove the Trustee, or (ii) subject
to Section 514, the Holder of any Security 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. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company
shall promptly appoint a successor trustee and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy the Company has not
appointed a successor Trustee, a successor trustee shall be appointed by the Act
of the Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee. Such 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 of the Securities and accepted appointment in the manner hereinafter
provided, the Holder of any Security who has been a bona fide Holder for at
least six months may, subject to Section 514, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor trustee.
(f) 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 the Holders of
Securities 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 or agent hereunder.
Section 611. 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 as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee,
upon payment of its charges pursuant to Section 607 then unpaid, such retiring
Trustee shall pay over to the successor trustee all moneys at the time held by
71
it hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor trustee, the Company shall execute any and all instruments
for fully and certainly vesting in and confirming to such successor trustee all
such rights and powers.
No successor trustee with respect to the Securities shall accept
appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as provided in this
Section 611, the Company shall give notice thereof to the Holders of the
Securities, by mailing such notice to such Holders at their addresses as they
shall appear on the Security Register. If the acceptance of appointment is
substantially contemporaneous with the appointment, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
610. If the Company fails to give such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be given at the expense of the Company.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture) shall be
the successor of the Trustee hereunder, provided that such corporation shall be
eligible under Trust Indenture Act Section 310(a) and this Article Six and shall
have a combined capital and surplus of at least $100,000,000 and have a
Corporate Trust Office or an agent selected in accordance with Section 609,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
If at the time such successor to the Trustee shall succeed to the trusts
created by this Indenture any of the Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, if at that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificate shall have the full force which
it is anywhere in the Securities or in this Indenture provided that the
certificate of the Trustee shall have; provided that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
other obligor under the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to Trust Indenture Act Section 311(a) to the extent
indicated therein.
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to and
at the expense of the Company 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
72
or pursuant to Section 308, 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 person 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 $100,000,000 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 person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such person shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Company or 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 or the Trustee,
as the case may be. 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 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
under this Section shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible to act as such under the provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including among other things the duties to authenticate
Securities when presented to it in connection with the original issuance and
with exchanges, registrations of transfer or redemptions or conversions thereof
or pursuant to Section 306; it will keep and maintain, and furnish to the
Trustee from time to time as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; and it will notify the Trustee promptly if it shall cease to be
eligible to act as Authenticating Agent in accordance with the provisions of
this Section. Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have agreed with the Trustee to indemnify the Trustee against
any loss, liability or expense incurred by the Trustee and to defend any claim
asserted against the Trustee by reason of any acts or failures to act of such
Authenticating Agent, but such Authenticating Agent shall have no liability for
any action taken by it in accordance with the specific written direction of the
Trustee.
73
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
STATE STREET BANK AND
TRUST COMPANY, As Trustee
By:
------------------------------------
[Name Authenticating Agent]
------------------------------------
------------------------------------
As Authenticating Agent
By:
------------------------------------
Authorized Officer
74
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 10 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
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list of similar form
and content to that in Section 701(a) hereof as of a date not more than 15 days
prior to the time such list is furnished:
provided, however, that if and so long as the Trustee shall be the Security
Registrar no such list need be furnished.
Section 702. Disclosure of Names and Addresses of Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities, and the Trustee shall comply with Trust Indenture Act Section
312(b). The Company, the Trustee, the Security Registrar and any other person
shall have the protection of Trust Indenture Act Section 312(c). Further, every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee or any agent of either
of them shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders in accordance with Trust Indenture
Act Section 312, 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 Trust Indenture Act Section 312.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first May
15 after the issuance of Securities, the Trustee, if so required under the Trust
Indenture Act, shall transmit by mail to all Holders, in the manner and to the
extent provided in Trust Indenture Act Section 313(c), a brief report dated as
of such May 15 in accordance with and with respect to the matters required by
Trust Indenture Act Section 313(a). The Trustee shall also transmit by mail to
all Holders, in the manner and to the extent provided in Trust Indenture Act
Section 313(c), a brief report in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this Section
703 shall, at the time of such transmission, be mailed to the Company and filed
with each stock exchange, if any, upon which the Securities are listed and also
with the Commission. The Company will notify the Trustee promptly if the
Securities are listed on any stock exchange.
75
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company and Guarantors May Consolidate, etc., Only on Certain
Terms.
(a) The Company will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other person or
sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets as an entirety to any person or
persons, or permit any of its Restricted Subsidiaries to enter into any such
transaction or series of related transactions if such transaction or series of
related transactions, in the aggregate, would result in a sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company or of the Company and its Restricted
Subsidiaries, taken as a whole, to any other person or persons, unless at the
time and after giving effect thereto:
(i) either (A)(1) if the transaction or transactions is a merger or
consolidation involving the Company as a constituent to the merger or
consolidation, the Company shall be the surviving person of such merger or
consolidation or (2) if the transaction or related transactions is a merger
or consolidation involving a Restricted Subsidiary as a constituent to the
merger or consolidation, such Restricted Subsidiary shall be the surviving
person of such merger or consolidation and such surviving person shall be a
Restricted Subsidiary, or (B)(1) the person formed by such consolidation or
into which the Company or such Restricted Subsidiary is merged or to which
the properties and assets of the Company or such Restricted Subsidiary, as
the case may be, substantially as an entirety, are transferred (any such
surviving person or transferee person being the "Surviving Entity") shall
be a corporation organized and existing under the laws of the United States
of America, any State thereof or the District of Columbia and (2) in the
case of a transaction involving the Company as a constituent to the merger
or consolidation, or as the transferor of all or substantially all of its
assets or taken as a whole, all or substantially all of the assets of it
and the Restricted Subsidiaries, the Surviving Entity shall expressly
assume by a supplemental indenture executed and delivered to the Trustee,
in form satisfactory to the Trustee, all the obligations of the Company
under the Securities and the Indenture, and in each case, the Indenture
shall remain in full force and effect;
(ii) immediately after giving effect to such transaction or
transactions on a pro forma basis (including any Indebtedness incurred or
anticipated to be incurred in connection with or as a result of such
transaction or series of related transactions), no Default or Event of
Default will have occurred and be continuing;
(iii) immediately after giving effect to such transaction or
transactions on a pro forma basis (on the assumption that the transaction
occurred on the first day of the four-quarter period for which financial
statements are available ending immediately prior to the consummation of
such transaction with the appropriate adjustments with respect to the
transaction being included in such proforma calculation), the Company (or
the Surviving Entity if the Company is not the continuing obligor
hereunder) could incur $1.00 of additional Indebtedness under Section
1008(a);
(iv) at the time of the transaction, each Guarantor, if any, unless it
is the other party to the transactions described above, will have by
supplemental indenture confirmed that its Guarantees shall apply to such
person's obligations hereunder and under the Securities;
(v) at the time of the transaction if any of the property or assets of
the Company or any of its Restricted Subsidiaries would thereupon become
subject to any Lien, the provisions of Section 1010 are complied with; and
76
(vi) at the time of the transaction the Company or the Surviving
Entity will have delivered, or caused to be delivered, to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officers'
Certificate and an Opinion of Counsel, each to the effect that such
consolidation merger, transfer, sale, assignment, conveyance, transfer,
lease or other transaction and the supplemental indenture in respect
thereof comply with this Indenture and that all conditions precedent herein
provided for relating to such transaction have been complied with.
(b) Each Guarantor shall not, and the Company will not permit a Guarantor
to, in a single transaction or through a series of related transactions,
consolidate with or merge with or into any other person (other than the Company
or any other Guarantor) or sell, assign, convey, transfer, lease or otherwise
dispose of all or substantially all of its properties and assets as an entirety
to any person or persons (other than the Company or any other Guarantor), unless
at the time and after giving effect thereto:
(i) either (1) the Guarantor will be the continuing corporation or (2)
the person (if other than the Guarantor) formed by such consolidation or
into which such Guarantor is merged or the person which acquires by sale,
assignment, conveyance, transfer, lease or disposition all or substantially
all of the properties and assets of the Guarantor (the "Surviving Guarantor
Entity") will be a corporation duly organized and validly existing under
the laws of the United States of America, any state thereof or the District
of Columbia and such person expressly assumes, by a supplemental indenture,
in a form satisfactory to the Trustee, all the obligations of such
Guarantor under its Guarantee of the Securities and this Indenture, and
such Guarantee will remain in full force and effect;
(ii) immediately before and immediately after giving effect to such
transaction or transactions, on a pro forma basis, no Default or Event of
Default shall have occurred and be continuing; and
(iii) at the time of the transaction such Guarantor or the Surviving
Guarantor Entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
Officers' Certificate and an Opinion of Counsel, each to the effect that
such consolidation, merger, transfer, sale, assignment, conveyance, lease
or other transaction and the supplemental indenture in respect thereof
comply with this Indenture and that all conditions precedent therein
provided for relating to such transaction have been complied with.
Notwithstanding the foregoing provisions of this Section 801(b), Section
801(b) shall not apply upon any sale, exchange or transfer of all of the
Company's Capital Stock in, or all or substantially all of the assets of, a
Guarantor that shall be released in accordance with Section 1018(d).
Section 802. Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company or any Guarantor, if any, in accordance with Section 801,
in which the Company or such Guarantor, as the case may be, is not the Surviving
Entity or the Surviving Guarantor Entity, as the case may be, then (i) the
Surviving Entity or the Surviving Guarantor Entity, as the case may be, shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or such Guarantor, as the case may be, under this Indenture, in the
Securities and/or the Guarantee, as the case may be, with the same effect as if
such Surviving Entity or Surviving Guarantor Entity had been named as the
Company or such Guarantor, as the case may be, herein, in the Securities and/or
in the Guarantee, as the case may be, and (ii) when such successor assumes all
the obligations of its predecessor under and in accordance with this Indenture,
the Securities or a Guarantee, as the case may be, the predecessor shall be
released from those obligations and covenants hereof and the Securities or the
Guarantees, as the case may be, provided that in the case
77
of a transfer by lease by the Company or any Guarantor of all or substantially
all of its assets, the predecessor shall not be released from the payment of
principal and interest on the Securities or a Guarantee, as the case may be;
provided further that, solely for purposes of computing cumulative Consolidated
Net Income for purposes of clause (b) of Section 1009(a), the cumulative
Consolidated Net Income of any persons other than the Company and the Restricted
Subsidiaries shall only be included for periods subsequent to the effective time
of such merger, consolidation, combination or transfer of assets.
For all purposes of this Indenture and the Securities (including the
provision of this Section 802 and Sections 1008, 1009 and 1010), Subsidiaries of
any Surviving Entity will, upon such transaction or series of transactions,
become Restricted Subsidiaries or Unrestricted Subsidiaries as provided pursuant
to Section 1017, and all Indebtedness, and all Liens on property or assets, of
the Company and the Restricted Subsidiaries immediately prior to such
transaction or series of transactions will be deemed to have been incurred upon
such transaction or series of transactions.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures and Agreements, without Consent of
Holders.
Without the consent of any Holders, the Company, the Guarantors, if any,
and any other obligor upon the Securities when authorized by Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto or agreements or other instruments with respect
to any Guarantee, in form and substance satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another person to the Company, any
Guarantor or any other obligor upon the Securities, and the assumption by any
such successor of the covenants of the Company or such Guarantor or obligor
herein and in the Securities and in any Guarantee in accordance with Article
Eight;
(b) to add to the covenants of the Company, any Guarantor or any other
obligor upon the Securities for the benefit of the Holders, or to surrender any
right or power conferred upon the Company or any Guarantor or any other obligor
upon the Securities, as applicable, herein, in the Securities or in any
Guarantee:
(c) to cure any ambiguity, or to correct or supplement any provision herein
or in any supplemental indenture, the Securities or any Guarantee which may be
defective or inconsistent with any other provision herein or in the Securities
or any Guarantee or to make any other provisions with respect to matters or
questions arising under this Indenture, the Securities or the Guarantees;
provided that, in each case, such provisions shall not materially and adversely
affect the rights of any Holder;
(d) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by Section 905 or otherwise:
(e) to add a Guarantor pursuant to the requirements of Section 1018;
(f) to evidence and provide the acceptance of the appointment of a
successor trustee hereunder; or
78
(g) to mortgage, pledge, hypothecate or grant a security interest in favor
of the Trustee for the benefit of the Holders as additional security for the
payment and performance of the Company's or any Guarantor's Indenture
Obligations in any property or assets, including any of which are required to be
mortgaged, pledged or hypothecated, or in which a security interest is required
to be granted to the Trustee pursuant to this Indenture or otherwise.
Section 902. Supplemental Indentures and Agreements with Consent of
Holders.
In addition to the circumstances permitted by Section 901, with the consent
of the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities, by Act of said Holders delivered to the Company, each
Guarantor, if any, and the Trustee, the Company and each Guarantor (if a party
thereto) when authorized by Board Resolutions, and the Trustee may (i) enter
into an indenture or indentures supplemental hereto or agreements or other
instruments with respect to any Guarantee in form and substance satisfactory to
the Trustee, for the purpose of adding any provisions to or amending, modifying
or changing in any manner or eliminating any of the provisions of this
Indenture, the Securities or any Guarantee (including, for the purpose of
modifying in any manner the rights of the Holders under this Indenture, the
Securities or any Guarantee) or (ii) waive, compliance with any provision in
this Indenture, the Securities or any Guarantee (other than waivers of past
Defaults covered by Section 513 and waivers of covenants which are covered by
Section 1020); provided, however, that no such supplemental indenture, agreement
or instrument shall, without the consent of the Holder of each Outstanding
Security affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
interest on, or change to an earlier date any redemption date of, or waive a
default in the payment of the principal or interest on, any such Security or
reduce the principal amount thereof or the rate of interest thereon or any
premium payable upon the redemption thereof, or change the coin or currency in
which the principal of any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date);
(b) following the occurrence of a Change of Control or Asset Sale, as the
case may be, amend, change or modify the obligation of the Company to make and
consummate an offer with respect to any Asset Sale or Asset Sales in accordance
with Section 1012 or the obligation of the Company to make and consummate a
Change of Control Offer in the event of a Change of Control in accordance with
Section 1011, including, in each case, amending, changing or modifying any
definitions relating thereto in a manner adverse to the Holders of the
Securities;
(c) 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 or
compliance with certain provisions of this Indenture;
(d) modify any of the provisions of this Section 902, Section 513 or
Section 1020, except to increase the percentage of such Outstanding Securities
required for any such actions or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each such Security affected thereby;
(e) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company or any Guarantor of any of its rights and
obligations hereunder;
(f) modify or change any of the provisions of this Indenture affecting the
subordination of the Securities or any Guarantee in any manner adverse to the
Holders or the holders of any Guarantee; or
79
(g) modify or change any Guarantee which could adversely affect a Holder.
Upon the written request of the Company and each Guarantor, if any,
accompanied by a copy of Board Resolutions authorizing the execution of any such
supplemental indenture or Guarantee, and upon the filing with the Trustee of
evidence of the consent of Holders as aforesaid, the Trustee shall join with the
Company and each Guarantor in the execution of such supplemental indenture or
Guarantee.
It shall not be necessary for any Act of Holders under this Section 902 to
approve the particular form of any proposed supplemental indenture or Guarantee
or agreement or instrument relating to any Guarantee, but it shall be sufficient
if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Trust
Indenture Act Sections 315(a) through 315(d) and Section 602 hereof) shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture, agreement
or instrument (a) is authorized or permitted by this Indenture and (b) does not
violate the provisions of any agreement or instrument evidencing any other
Indebtedness of the Company, any Guarantor or any other Restricted Subsidiary.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, any Guarantee or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article Nine shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine 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
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and each Guarantor and authenticated and delivered by
the Trustee in exchange for Outstanding Securities.
Section 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company, any Guarantor and the Trustee
of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture; provided, however, that the
failure of the Company to transmit such notice to such Holders shall not in any
way impair or affect the validity of such supplemental indenture.
80
Section 908. Revocation and Effects of Consents.
Until an amendment or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same Indebtedness as
the consenting Holder's Security, even if a notation of the consent is not made
on any Security. However, any such Holder, or subsequent Holder, may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver shall become effective in accordance with its terms and
thereafter bind every Holder.
Section 909. Effect on Senior Indebtedness.
No supplemental indenture shall adversely affect the rights under Article
Thirteen or Article Fourteen of any holder of Senior Indebtedness unless the
requisite holders of such issue of Senior Indebtedness affected thereby shall
have consented in writing to such supplemental indenture.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company shall duly and punctually pay the principal of, premium, if
any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in The City of New York an office or agency where
Securities may be presented or surrendered for payment, surrendered for
registration of transfer, redemption or exchange and where notices and demands
to or upon the Company in respect of the Securities and this Indenture may be
served. Initially, such office or agency will be Xxxxx Xxxxxx Xxxx & Xxxxx
Xxxxxxx xx Xxx Xxxx, X.X., 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and the Company will give prompt written notice to the Trustee of any change in
the location of any such offices or agencies. If at any time the Company shall
fail to maintain any such required offices or agencies or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the office of the agent of the Trustee, and
the Company hereby appoints the Trustee such agent as its agent to receive all
such presentations surrenders, notices and demands.
The Company may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Securities may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation. The Company will give prompt written notice to the
Trustee of any such designation or rescission and any change in the location of
any such office or agency.
The Trustee shall initially act as Paying Agent for the Securities.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company or any of its Affiliates shall at any time act as Paying
Agent it will on or before each due date of the principal of, premium if any, or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Holders entitled thereto a sum sufficient to pay the principal, premium
if
81
any, or interest so becoming due until such sums shall be paid to such Holders
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
If the Company or any of its Affiliates is not acting as Paying Agent, the
Company will, on or before each due date of the principal of, premium, if any,
or interest on any of the Securities, deposit with a Paying Agent a sum in same
day funds sufficient to pay the principal, 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 such action or
any failure so to act.
If the Company is not acting as Paying Agent, 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:
(a) hold all sums held by it for the payment of the principal of, premium
if any, or interest on the 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:
(b) give the Trustee notice of any Default by the Company or any Guarantor
(or any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest on the Securities;
(c) 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; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which 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, 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
promptly 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 the New York Times and The
Wall Street Journal (national edition), and mail to each such Holder, 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 notification,
publication and mailing, any unclaimed balance of such money then remaining will
promptly be repaid to the Company.
82
Section 1004. Corporate Existence.
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence and related rights and franchises (charter and statutory) of the
Company and each Restricted Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise or the corporate
existence of any such Restricted Subsidiary if the Board of Directors of the
Company shall determine that the preservation thereof is no longer necessary or
desirable in the conduct of the business of the Company and its Restricted
Subsidiaries as a whole and that the loss thereof would not reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; and provided, further, however, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its assets in compliance with the terms of this Indenture.
Section 1005. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged, on or
before the date the same shall become due and payable, (a) all taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Restricted Subsidiaries shown to be due on any return of the Company or
any of its Restricted Subsidiaries or otherwise assessed or upon the income,
profits or property of the Company or any of its Restricted Subsidiaries if
failure to pay or discharge the same could reasonably be expected to have a
material adverse effect on the ability of the Company or any Guarantor to
perform any of their obligations hereunder and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, would by law become a Lien upon the
property of the Company or any of its Restricted Subsidiaries, except for any
Lien permitted to be incurred under Section 1010, if failure to pay or discharge
the same could reasonably be expected to have a material adverse effect on the
ability of the Company or any Guarantor to perform any of their obligations
hereunder; provided however, that the Company and the Guarantors 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 properly instituted and
diligently conducted and in respect of which appropriate reserves (in the good
faith judgment of management of the Company) are being maintained in accordance
with GAAP.
Section 1006. Maintenance of Properties.
The Company shall cause all material properties owned by the Company and
any of its Restricted Subsidiaries or used or held for use in the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in good condition, repair and working order (ordinary wear and tear
excepted) 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 reasonable judgment of the Company may be consistent with
sound business practice and necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Company from discontinuing the
maintenance of any of such properties if such discontinuance is, in the
reasonable judgment of the Company, desirable in the conduct of its business or
the business of any of its Restricted Subsidiaries and not reasonably expected
to have a material adverse effect on the ability of the Company to perform its
obligations hereunder.
Section 1007. Insurance.
The Company shall at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like properties
engaged in similar operations in the same general geographic areas in which the
Company and its Restricted Subsidiaries operate, except
83
where the failure to do so could not reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), earnings, business
affairs or prospects of the Company and its Restricted Subsidiaries, taken as a
whole, provided that such insurance is generally available at commercially
reasonable rates, and further provided that the Company may self-insure, or
insure through captive insurers or insurance cooperatives to the extent
consistent with prudent business practices. Such insurance shall be in such
amounts, contain such terms, be in such forms and be for such periods as are
customary in the Company's industry and commercially reasonable. Such insurance
may be subject to such deductibles as are customary in the industry.
Section 1008. Limitation on Indebtedness.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee
or in any other manner become liable, contingently or otherwise (in each case,
to "incur"), for the payment of any Indebtedness (including any Acquired
Indebtedness); provided that (i) the Company and each Guarantor will be
permitted to incur Indebtedness (including Acquired Indebtedness) and (ii) a
Restricted Subsidiary which is not a Guarantor will be permitted to incur
Acquired Indebtedness if (y), immediately after giving pro forma effect thereto,
the Consolidated Fixed Charge Coverage Ratio of the Company would be equal to or
greater than 2.00:1 and (z) no Default or Event of Default shall have occurred
and be continuing at the time such Indebtedness or Acquired Indebtedness, as the
case may be, is incurred or would occur as a result of such incurrence.
(b) Notwithstanding the foregoing, the Company (and, to the extent
specifically set forth below, the Guarantors) may incur each and all of the
following Indebtedness (including any Acquired Indebtedness):
(i) (a) Indebtedness of the Company or any Guarantor under the Credit
Facility in an aggregate principal amount at any time outstanding not to
exceed $100,000,000 and any fees, premiums, expenses (including costs of
collection), indemnities and other similar amounts payable in connection
with such Indebtedness; and (b) other Indebtedness of the Company or any
Guarantor outstanding on the Issue Date (other than Indebtedness described
in clause (i)(a), (ii) or (v) of this Section 1008(b)) and listed in
Schedule 1008 hereto;
(ii) Indebtedness of the Company evidenced by the Securities and
Indebtedness of each Guarantor under its Guarantee;
(iii) Interest Rate Protection Obligations of the Company or any
Guarantor covering Indebtedness of the Company or any Guarantor incurred in
the ordinary course of business and permitted to be incurred by the Company
or any Guarantor, as the case may be, pursuant to this Indenture; provided
that the notional principal amount of any such Interest Rate Protection
Obligations does not exceed 100% of the principal amount of the
Indebtedness to which such Interest Rate Protection Obligations expressly
relates;
(iv) Indebtedness of the Company or any of the Guarantors under
Currency Agreement Obligations; provided that such Currency Agreement
Obligations (a) do not increase the Indebtedness or other obligations of
the Company and the Guarantors outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder and (b) are entered into in
the ordinary course of business for the purpose of limiting risks that
arise in the ordinary course of business of the Company and the Guarantors;
(v) Indebtedness of the Company owed to a Restricted Subsidiary and
Indebtedness of a Guarantor owed to the Company or another Guarantor;
provided that (a) any subsequent issuance or transfer of Capital Stock or
any Designation that results in such Restricted Subsidiary
84
or Guarantor (as the case may be) ceasing to be a Restricted Subsidiary or
any subsequent transfer, pledge or assignment of such Indebtedness (other
than to the Company or another Guarantor) will be deemed to constitute the
incurrence of such Indebtedness by the Company or such Guarantor, as the
case may be, not permitted by this clause (v) and (b) any such Indebtedness
of the Company owed to a Restricted Subsidiary and any such Indebtedness of
a Guarantor owed to another Guarantor, must be unsecured and subordinated
in right of payment to the prior payment in full and performance of the
Company's obligations under this Indenture and the Securities, and such
Guarantor's obligations under its Guarantee, as the case may be;
(vi) Indebtedness of the Company or any Guarantor incurred in respect
of bid, performance and payment bonds (other than in respect of
Indebtedness), surety bonds, trade letters of credit, bankers' acceptances
and letters of credit supporting bids, advance payments and performance
obligations of the Company or any Guarantor (other than in respect of
Indebtedness), in each case incurred in the ordinary course of business;
(vii) Indebtedness of the Company or any Guarantor (a) representing
Capitalized Lease Obligations or (b) Purchase Money Obligations for
property acquired in the ordinary course of business, which taken together
do not exceed $20,000,000 in aggregate amount at any time outstanding;
(viii) Indebtedness of the Company or any Guarantor to the extent the
proceeds thereof are used to Refinance Indebtedness of the Company
(including all or a portion of the Securities) or any Guarantor to the
extent the Indebtedness to be Refinanced, has been incurred under or
referred to in Section 1008(a) or clauses (i)(b), (ii), (vii)(b) or (ix) of
this Section 1008(b); provided that the principal amount of Indebtedness
incurred pursuant to this clause (viii) (or, if such Indebtedness provides
for an amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration of the maturity thereof, the original
issue price of such Indebtedness) shall not exceed the sum of the principal
amount of Indebtedness so Refinanced (or, if such Indebtedness provides for
an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof, the original issue
price of such Indebtedness plus any accredited value attributable thereto
since the original issuance of such Indebtedness) plus the amount of any
premium required to be paid in connection therewith pursuant to the terms
of such Indebtedness or the amount of any premium reasonably determined by
the Company or a Guarantor, as applicable, as necessary to accomplish the
foregoing by means of a tender or exchange offer or privately negotiated
purchase, plus the amount of expenses in connection therewith; and
(ix) Indebtedness of the Company and the Guarantors (which may include
any Indebtedness incurred for any purpose, including but not limited to the
purposes referred to in clauses (i) through (viii) of this Section 1008(b))
in an aggregate amount which, together with the amount of all other
Indebtedness of the Company and the Guarantors outstanding on the date of
such incurrence (other than Indebtedness permitted by clauses (i) through
(viii) of this Section 1008(b) or Section 1008(a)) does not exceed
$25,000,000.
(c) Notwithstanding Section 1008(b), neither the Company nor any Guarantor
shall incur any Indebtedness pursuant to Section 1008(b) if the proceeds thereof
are used, directly or indirectly, (i) to Refinance any Subordinated Obligations
of the Company or such Guarantor, as the case may be, unless such Indebtedness
(A) shall be subordinated to the Securities or the relevant Guarantee to at
least the same extent as such Subordinated Obligations, (B) has an Average Life
to Stated Maturity greater than the lesser of (y) the remaining Average Life to
Stated Maturity of the Subordinated Obligations being Refinanced or (z) the
remaining Average Life to Stated Maturity of the Securities, and (C) has a
Stated Maturity for its final scheduled principal payment later than the Stated
Maturity for the final scheduled principal payment of the Subordinated
Obligations being Refinanced, or (ii) to Refinance any Pari Passu
85
Indebtedness, unless such Refinancing does not reduce the Average Life to Stated
Maturity or the Stated Maturity of such Pari Passu Indebtedness.
Section 1009. Limitation on Restricted Payments.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly:
(i) declare or pay any dividend or make any other distribution or
payment on or in respect of Capital Stock of the Company or any Restricted
Subsidiary or any payment made to the direct or indirect holders (in their
capacities as such) of Capital Stock of the Company or any Restricted
Subsidiary (other than dividends or distributions payable solely (a) in
Capital Stock of the Company (other than Redeemable Capital Stock), (b) in
rights to purchase Capital Stock of the Company (other than Redeemable
Capital Stock) and (c) to the Company);
(ii) purchase, redeem, defease or otherwise acquire or retire for
value any Capital Stock of the Company or any Restricted Subsidiary (other
than any such Capital Stock owned by a Wholly-Owned Restricted Subsidiary);
(iii) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior to any
scheduled maturity, scheduled repayment, scheduled sinking fund payment or
other Stated Maturity, any Subordinated Obligations (other than any such
Subordinated Obligations owed to a Wholly-Owned Restricted Subsidiary); or
(iv) make any Investment (other than a Permitted Investment) in any
person
(such payments or Investments described in (but not excluded from) the
preceding clauses (i) (other than by reason of the proviso thereto), (ii),
(iii) and (iv) are collectively referred to as "Restricted Payments"),
unless, at the time of and after giving effect to the proposed Restricted
Payment (the amount of any such Restricted Payment, if other than in cash,
shall be the Fair Market Value of the asset or assets proposed to be
transferred by the Company or such Restricted Subsidiary, as the case may
be, pursuant to such Restricted Payment),
(A) no Default shall have occurred and be continuing,
(B) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made from and after the Issue Date would
not exceed the sum of
(1) 50% of the aggregate Consolidated Net Income of the Company
accrued on a cumulative basis during the period (treated as one
accounting period) beginning on the Issue Date and ending on the last
day of the fiscal quarter of the Company immediately preceding the
date of such proposed Restricted Payment (or, if such aggregate
cumulative Consolidated Net Income of the Company for such period
shall be a deficit, minus 100% of such deficit) plus
(2) the aggregate net cash proceeds received by the Company either (x)
as capital contributions in the form of common equity to the Company
after the Issue Date or (y) from the issuance or sale of Capital Stock
(excluding Redeemable Capital Stock but including Capital Stock issued
upon the conversion of convertible Indebtedness, in exchange for
outstanding Indebtedness or from the exercise of options, warrants or
rights to purchase Capital Stock (other than Redeemable Capital
Stock)) of the Company to any person (other than to a Restricted
Subsidiary or to an employee stock ownership plan or
86
to a trust established by the Company or any of its Subsidiaries for
the benefit of their employees) after the Issue Date plus
(3) the aggregate net cash proceeds received by the Company from the
issuance or sale subsequent to the Issue Date of its Capital Stock
(other than Redeemable Capital Stock) to an employee stock ownership
or stock purchase plan, provided, however, that if such employee stock
ownership or stock purchase plan incurs any Indebtedness with respect
thereto, such aggregate amount shall be limited to an amount equal to
any increase in the consolidated net worth of the Company resulting
from principal repayments made by such employee stock ownership or
stock purchase plan with respect to such Indebtedness plus
(4) in the case of the disposition or repayment of any Investment
constituting a Restricted Payment made after the Issue Date (excluding
any Investment made pursuant to clause (iv) of Section 1009(b), an
amount equal to the lesser of the return of capital with respect to
such investment and the initial amount of such Investment, in either
case, less the cost of the disposition of such Investment plus
(5) 100% of the aggregate amount of all Investments previously made on
or after the date of the Indenture in any Unrestricted Subsidiary upon
the revocation of the designation of such Unrestricted Subsidiary as
such, other than Investments made in such Unrestricted Subsidiary
pursuant to clause (iv) of Section 1009(b) and
(C) the Company could incur $1.00 of additional Indebtedness under Section
1008(a).
For purposes of the preceding clause (B)(2), upon the issuance of Capital Stock
either from the conversion of convertible Indebtedness or in exchange for
outstanding Indebtedness or upon the exercise of options, warrants or rights,
the amount counted as net cash proceeds received will be the cash amount
received by the Company at the original issuance of the Indebtedness that is so
converted or exchanged or from the issuance of options, warrants or rights, as
the case may be, plus the incremental amount of cash received by the Company, if
any, upon the conversion, exchange or exercise thereof.
(b) None of the foregoing provisions of Section 1009(a) will prohibit (i)
the payment of any dividend within 60 days after the date of its declaration, if
at the date of declaration such payment would be permitted by Section 1009(a);
provided, however, that at the time of payment of such dividend, no other
Default shall have occurred and be continuing (or result therefrom); (ii) the
redemption, repurchase or other acquisition or retirement of any shares of any
class of Capital Stock of the Company or any Restricted Subsidiary in exchange
for, or out of the net cash proceeds of, a substantially concurrent issue and
sale of other shares of Capital Stock (other than Redeemable Capital Stock) of
the Company to any person (other than to a Restricted Subsidiary or an employee
stock ownership plan or to a trust established by the Company or any of its
Subsidiaries for the benefit of their employees); provided that such net cash
proceeds are excluded from clause (B)(2)(y) of Section 1009(a); (iii) so long as
no Default shall have occurred and be continuing, any redemption, repurchase or
other acquisition or retirement of Subordinated Obligations by exchange for, or
out of the net cash proceeds of, a substantially concurrent issue and sale of
(1) Capital Stock (other than Redeemable Capital Stock) of the Company to any
person (other than to a Restricted Subsidiary or an employee stock ownership
plan or to a trust established by the Company or any of its Subsidiaries for the
benefit of their employees); provided that any such net cash proceeds are
excluded from clause (B)(2)(y) of Section 1009(a); or (2) Indebtedness of the
Company so long as such Indebtedness (x) is subordinated to the Securities in
the same manner and at least to the same extent as the Subordinated Obligations
being redeemed, repurchased, acquired or retired, (y) has no Stated Maturity
earlier than the 91st day after the Stated Maturity for the final scheduled
principal payment of the Securities and (z) is permitted to be incurred pursuant
to Section 1008; and (iv) the making of Investments constituting Restricted
Payments made after the Issue Date as a result of the
87
receipt of non-cash consideration from any Asset Sale made pursuant to and in
compliance with Section 1012. In computing the amount of Restricted Payments
previously made for purposes of clause (B) of Section 1009(a), Restricted
Payments made under clauses (i) and (iv) of this Section 1009(b) shall be
included.
Section 1010. Limitation on Liens.
(a) The Company will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind against or upon any of the Company's or such Restricted Subsidiary's (as
the case may be) property or assets, whether now owned or acquired after the
date of the Indenture, or any proceeds therefrom, which secures either (i)
Subordinated Obligations (other than Subordinated Obligations of a Restricted
Subsidiary owing to the Company secured by assets of such Restricted
Subsidiary), unless the Securities or Guarantees, as the case may be, are
secured by a Lien on such property, assets or proceeds that is senior in
priority to the Liens securing such Subordinated Obligations or (ii) Pari Passu
Indebtedness unless the Securities or Guarantees, as the case may be, are
equally and ratably secured with the Liens securing such Pari Passu
Indebtedness. This Section 1010 will not apply to any Lien securing Acquired
Indebtedness, provided that any such Lien extends only to the properties or
assets that were subject to such Lien prior to the related acquisition by the
Company or such Restricted Subsidiary and was not created, incurred or assumed
in contemplation of such transaction.
(b) Notwithstanding the foregoing provisions of Section 1010(a), any Lien
granted by the Company or any Restricted Subsidiary to secure the Securities or
Guarantees, as the case may be, created pursuant to Section 1010(a) shall
provide by its terms that such Lien shall be automatically and unconditionally
released and discharged upon the release by the holders of the Indebtedness of
the Company or any Restricted Subsidiary described in Section 1010(a) of their
Lien (including any deemed release upon payment in full of all obligations under
such Indebtedness), at a time when (A) no other Pari Passu Indebtedness and
Subordinated Obligations of the Company or any Restricted Subsidiary has been
secured by such property or assets of the Company or any such Restricted
Subsidiary or (B) the holders of all such other Pari Passu Indebtedness and
Subordinated Obligations which is secured by such property or assets of the
Company or any such Restricted Subsidiary also release their Lien in such
property or assets (including any deemed release upon payment in full of all
obligations under such Indebtedness).
Section 1011. Purchase of Securities Upon a Change of Control.
(a) Upon the occurrence of a Change of Control (the date of such
occurrence, the "Change of Control Date"), the Company shall be obligated to
make an offer to purchase (a "Change of Control Offer") and shall, subject to
the provisions of this Section 1011 described below, purchase, on a Business Day
(the "Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of the Change of Control, all of the then outstanding
Securities at a purchase price equal to 101% of the principal amount thereof
plus accrued and unpaid interest, if any (the "Change of Control Purchase
Price"), to the Change of Control Purchase Date. The Company shall, subject to
the provisions of this Section 1011 described below, purchase all Securities
properly tendered into the Change of Control Offer and not withdrawn. Prior to
the mailing of the notice to Holders provided for below, the Company shall have
(i) terminated all commitments and repaid in full all Indebtedness under the
Credit Facility or (ii) obtained the requisite consents under the Credit
Facility to permit the purchase of the Securities as provided for under this
Section 1011. If a notice has been mailed when such condition precedent has not
been satisfied, the Company shall have no obligation to (and shall not) effect
the purchase of the Securities until such time as such condition precedent is
satisfied. Failure to mail the notice on the date specified below or to have
satisfied the foregoing condition precedent by the date that the notice is
required to be mailed shall in any event constitute a Default under Section
501(c)(iv).
88
(b) Notice of a Change of Control Offer shall be mailed by the Company not
later than the 30th day after the Change of Control Date to each Holder of the
Securities at such Holder's addresses appearing in the Security Register (a
"Change of Control Purchase Notice"), with a copy to the Trustee and the Paying
Agent. The Change of Control Offer shall remain open from the time of mailing
for at least 20 Business Days and until 5:00 p.m., New York City time, on the
Change of Control Purchase Date. The notice, which shall govern the terms of
the Change of Control Offer, shall include such disclosures as are required by
law and shall state:
(1) that a Change of Control has occurred, the Change of Control Date
and that such Holder has the right to require the Company to repurchase
such Holder's Securities at the Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro forma
historical income, cash flow and capitalization after giving effect to such
Change of Control);
(3) (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q, as applicable, and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report (or if the Company is not required to prepare any of the
foregoing Forms, the comparable information required to be prepared by the
Company and any Guarantor pursuant to Section 1019(a)), (ii) a description
of material developments, if any, in the Company's business subsequent to
the date of the latest of such reports and (iii) such other information, if
any, concerning the business of the Company which the Company in good faith
believes will enable such Holders to make an informed investment decision
regarding the Change of Control Offer;
(4) that the Change of Control Offer is being made pursuant to this
Section 1011 and that all Securities properly tendered pursuant to the
Change of Control Offer will be accepted for payment at the Change of
Control Purchase Price;
(5) the Change of Control Purchase Date, which shall be a Business Day
fixed by the Company which shall be no earlier than 30 days nor later than
60 days following the date of the occurrence of the Change of Control, or
such later date as is necessary to comply with requirements under the
Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 1002;
(8) that Securities must be surrendered prior to the Change of Control
Purchase Date to the Paying Agent at the office of the Paying Agent or to
an office or agency referred to in Section 1002 to collect payment;
(9) that the Change of Control Purchase Price for any Security which
has been properly tendered and not withdrawn will be paid promptly
following the Change of Control Purchase Date;
(10) the procedures that a Holder must follow to accept a Change of
Control Offer or to withdraw such acceptance;
(11) that any Security not tendered will continue to accrue interest:
and
89
(12) that, unless the Company defaults in the payment of the Change of
Control Purchase Price, any Securities accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of Securities, the
Holder of the Security in respect of which such proper tender was made shall
(unless the tender of such Security is properly withdrawn) thereafter be
entitled to receive solely the Change of Control Purchase Price with respect to
such Security. Upon surrender of any such Security for purchase in accordance
with the foregoing provisions, such Security shall be paid by the Company at the
Change of Control Purchase Price; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Change of Control Purchase
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 309. If any Security
tendered for purchase in accordance with the provisions of this Section 1011
shall not be so paid upon surrender thereof, the principal thereof (and premium,
if any, thereon) shall, until paid, bear interest from the Change of Control
Purchase Date at the rate borne by such Security. Holders electing to have
Securities purchased will be required to surrender such Securities to the Paying
Agent at the address specified in the Change of Control Purchase Notice on or
prior to the Change of Control Purchase Date. Any Security that is to be
purchased only in part shall be surrendered to a Paying Agent at the office of
such Paying Agent (with, if the Company, the Security Registrar or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Security Registrar or the Trustee, as the
case may be, duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
one or more new Securities of any authorized denomination as requested by such
Holder in an aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not
purchased.
(d) The Company shall (i) not later than the Change of Control Purchase
Date, accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) not later than 10:00 a.m. (New York time) on the
Business Day following the Change of Control Purchase Date, deposit with the
Trustee or with a Paying Agent an amount of money in same day funds (or New York
Clearing House funds if such deposit is made prior to the Change of Control
Purchase Date) sufficient to pay the aggregate Change of Control Purchase Price
of all the Securities or portions thereof which are to be purchased as of the
Change of Control Purchase Date and (iii) not later than 10:00 a.m. (New York
time) on the Business Day following the Change of Control Purchase Date, deliver
to the Paying Agent an Officers' Certificate stating the Securities or portions
thereof accepted for payment by the Company. The Paying Agent shall promptly
mail or deliver to Holders of Securities so accepted payment in an amount equal
to the Change of Control Purchase Price of the Securities purchased from each
such Holder, and the Company shall execute and the trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. The Company will publicly
announce the results of the Change of Control Offer on the Change of Control
Purchase Date. For purposes of this Section 1011, the Company shall choose a
Paying Agent which shall not be the Company.
(e) A tender made in response to a Change of Control Purchase Notice may be
withdrawn if the Company receives, not later than one Business Day prior to the
Change of Control Purchase Date, a telegram, telex, facsimile transmission or
letter, specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted;
90
(3) the principal amount of the Security (which shall be $1,000 or an
integral multiple thereof) delivered for purchase by the Holder as to which
such notice of withdrawal is being submitted;
(4) a statement that such Holder is withdrawing his election to have
such principal amount of such Security purchased; and
(5) the principal amount, if any, of such Security (which shall be
$1,000 or an integral multiple thereof) that remains subject to the
original Change of Control Purchase Notice and that has been or will be
delivered for purchase by the Company.
(f) Subject to applicable escheat laws, the Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change of Control Purchase Price; provided, however, that, (i) to the extent
that the aggregate amount of cash deposited by the Company pursuant to clause
(ii) of Section 1011(d) exceeds the aggregate Change of Control Purchase Price
of the Securities or portions thereof to be purchased, then the Trustee shall
hold such excess for the Company and (ii) unless otherwise directed by the
Company in writing, no later than the second Business Day following the Change
of Control Purchase Date the Trustee shall return any such excess (including,
without limitation, monies deposited with respect to a tender withdrawn in
accordance with the provisions of Section 1011(e)) to the Company together with
interest, if any, thereon.
(g) The Company shall comply, to the extent applicable, with the applicable
tender offer rules, including Rule 14e-1 under the Exchange Act, and any other
applicable securities laws or regulations in connection with a Change of Control
Offer.
Section 1012. Disposition of Proceeds of Asset Sales.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, make any Asset Sale unless (i) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the shares, properties or assets sold or otherwise disposed of and (ii)
with respect to any Asset Sale for which the consideration exceeds $5,000,000,
at least 75% of such consideration consists of cash and/or Cash Equivalents
(with Indebtedness of the Company or any Restricted Subsidiary (other than any
Restricted Subsidiary that will cease to be a Restricted Subsidiary as a result
of such Asset Sale) being counted as cash for all purposes of this Section
1012(a) if the Company or the Restricted Subsidiary is unconditionally released
from any liability therefor). Net Cash Proceeds of any Asset Sale may be
applied to repay Specified Indebtedness or Credit Facility Obligations (but only
if the commitments or amounts available to be borrowed under such Specified
Indebtedness or the Credit Facility, as the case may be, are permanently reduced
by the amount of such payment). To the extent that such Net Cash Proceeds are
not applied as provided in the preceding sentence, the Company or a Restricted
Subsidiary, as the case may be, may apply the Net Cash Proceeds from such Asset
Sale, within 360 days of the date of such Asset Sale, to an investment in
properties and assets that were the subject of such Asset Sale or in properties
and assets that are similar to the properties and assets that will be used in
the business of the Company and the Restricted Subsidiaries existing on the
Issue Date or in businesses reasonably related thereto ("Replacement Assets").
Any Net Cash Proceeds from any Asset Sale not applied as provided in the
preceding two sentences, within 360 days of the date of such Asset Sale,
constitute "Excess Proceeds" subject to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds equals or exceeds
$10,000,000, the Company shall make an offer to purchase, from all Holders of
the Securities and any then outstanding Pari Passu Indebtedness required to be
repurchased or repaid on a permanent basis in connection with
91
an Asset Sale, an aggregate principal amount of Securities and any such Pari
Passu Indebtedness equal to such Excess Proceeds as follows:
(i) (a) The Company shall make an offer to purchase (a "Net Proceeds
Offer") from all Holders of the Securities in accordance with the
procedures set forth in the Indenture the maximum principal amount
(expressed as a multiple of $1,000) of Securities that may be purchased out
of an amount (the "Payment Amount") equal to the product of such Excess
Proceeds multiplied by a fraction, the numerator of which is the
outstanding principal amount of the Securities and the denominator of which
is the sum of the outstanding principal amount of the Securities and such
Pari Passu Indebtedness, if any (subject to proration if such amount is
less than the aggregate Offered Price (as defined in clause (ii) below) of
all Securities tendered), and (b) to the extent required by any such Pari
Passu Indebtedness and provided there is a permanent reduction in the
principal amount of such Pari Passu Indebtedness, the Company shall make an
offer to purchase such Pari Passu Indebtedness (a "Pari Passu Offer") in an
amount (the "Pari Passu Indebtedness Amount") equal to the excess of the
Excess Proceeds over the Payment Amount.
(ii) The offer price for the Securities shall be payable in cash in an
amount equal to 100% of the principal amount of the Securities tendered
pursuant to a Net Proceeds Offer, plus accrued and unpaid interest, if any,
to the date ("Offer Date") such Net Proceeds Offer is consummated (the
"Offered Price"), in accordance with the procedures set forth in this
Indenture. To the extent that the aggregate Offered Price of the
Securities tendered pursuant to a Net Proceeds Offer is less than the
Payment Amount relating thereto or the aggregate amount of the Pari Passu
Indebtedness that is purchased or repaid pursuant to the Pari Passu Offer
is less than the Pari Passu Indebtedness Amount (such shortfall
constituting a "Net Proceeds Deficiency"), the Company may use such Net
Proceeds Deficiency, or a portion thereof, for general corporate purposes,
subject to the limitations of Section 1009.
(iii) If the aggregate Offered Price of Securities validly tendered
and not withdrawn by holders thereof exceeds the Payment Amount, Securities
to be purchased will be selected on a pro rata basis. Upon completion of
such Net Proceeds Offer and Pari Passu Offer, the amount of Excess Proceeds
shall be reset to zero.
(c) When the aggregate amount of Excess Proceeds exceeds $10,000,000, such
Excess Proceeds will, prior to any purchase of Securities described in Section
1012(b), be set aside by the Company in a separate account pending (i) deposit
with the depository or a paying agent of the amount required to purchase the
Securities tendered in a Net Proceeds Offer or Pari Passu Indebtedness tendered
in a Pari Passu Offer, (ii) delivery by the Company of the Offered Price to the
holders of the Securities tendered in a Net Proceeds Offer or Pari Passu
Indebtedness tendered in a Pari Passu Offer and (iii) application, as set forth
above, of Excess Proceeds in the business of the Company and its Subsidiaries
for general corporate purposes. Such Excess Proceeds may be invested in Cash
Equivalents, provided that the maturity date of any such investment made after
the amount of Excess Proceeds exceeds $10,000,000 shall not be later than the
Offer Date. The Company shall be entitled to any interest or dividends accrued,
earned or paid on such Temporary Cash Investments; provided that the Company
shall not withdraw such interest from the separate account if an Event of
Default has occurred and is continuing.
(d) If the Company becomes obligated to make a Net Proceeds Offer pursuant
to Section 1012(b), the Securities and the Pari Passu Indebtedness shall be
purchased by the Company, at the option of the holders thereof, in whole or in
part in integral multiples of $1,000, on a date that is not earlier than 45 days
and not later than 60 days from the date the notice of the Net Proceeds Offer is
given to holders, or such later date as may be necessary for the Company to
comply with the requirements under the Exchange Act.
92
(e) The Company will comply with the applicable tender offer rules,
including Rule 14e-1 under the Exchange Act, and any other applicable securities
laws or regulations in connection with a Net Proceeds Offer.
(f) Subject to Section 1012(e), within 30 days after the date on which the
amount of Excess Proceeds equals or exceeds $10,000,000, the Company shall send
or cause to be sent by first-class mail, postage prepaid, to the Trustee and to
each Holder, at his address appearing in the Security Register, a notice stating
or including:
(1) that the Holder has the right to require the Company to
repurchase, subject to proration, such Holder's Securities at the Offered
Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to have his
Securities purchased in accordance with Section 1012(b);
(4) (i) the most recently filed Annual Report on Form 10-K (including
audited consolidated financial statements) of the Company, the most recent
subsequently filed Quarterly Report on Form 10-Q, as applicable, and any
Current Report on Form 8-K of the Company filed subsequent to such
Quarterly Report, other than Current Reports describing Asset Sales
otherwise described in the offering materials (or corresponding successor
reports) (or if the Company is not required to prepare any of the foregoing
Forms, the comparable information required pursuant to Section 1019(a)),
(ii) a description of material developments, if any, in the Company's
business subsequent to the date of the latest of such Reports, (iii) if
material, appropriate pro forma financial information, and (iv) such other
information, if any, concerning the business of the Company which the
Company in good faith believes will enable such Holders to make an informed
investment decision regarding the Offer;
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and the offices or
agencies referred to in Section 1002;
(7) that Securities must be surrendered prior to the Offer Date to the
Paying Agent at the office of the Paying Agent or to an office or agency
referred to in Section 1002 to collect payment;
(8) that any Securities not tendered will continue to accrue interest
and that unless the Company defaults in the payment of the Offered Price,
any Security accepted for payment pursuant to the Offer shall cease to
accrue interest on and after the Offer Date;
(9) the procedures for withdrawing a tender; and
(10) that the Offered Price for any Security which has been properly
tendered and not withdrawn and which has been accepted for payment pursuant
to the Offer will be paid promptly following the Offer Date.
(g) Holders electing to have Securities purchased hereunder will be
required to surrender such Securities at the address specified in the notice on
or prior to the Offer Date. Holders will be entitled to withdraw their election
to have their Securities purchased pursuant to this Section 1012, if the Company
receives, not later than the Offer Date, a telegram, telex, facsimile
transmission or letter setting forth (1) the name of the Holder, (2) the
certificate number of the Security in respect of which such notice
93
of withdrawal is being submitted, (3) the principal amount of the Security
(which shall be $1,000 or an integral multiple thereof) delivered for purchase
by the Holder as to which his election is to be withdrawn, (4) a statement that
such Holder is withdrawing his election to have such principal amount of such
Security purchased, and (5) the principal amount, if any, of such Security
(which shall be $l,000 or an integral multiple thereof) that remains subject to
the original notice of the Offer and that has been or will be delivered for
purchase by the Company.
(h) The Company shall (i) not later than the Offer Date, accept for payment
Securities or portions thereof tendered pursuant to the Offer, (ii) not later
than 10:00 a.m. (New York time) on the Business Day following the Offer Date,
deposit with the Trustee or with a Paying Agent an amount of money in same day
funds (or New York Clearing House funds if such deposit is made prior to the
Offer Date) sufficient to pay the aggregate Offered Price of all the Securities
or portions thereof which are to be purchased on that date and (iii) not later
than 10:00 a.m. (New York time) on the Business Day following the Offer Date,
deliver to the Paying Agent an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Securities so accepted payment in an
amount equal to the Offered Price of the Securities purchased from each such
Holder, and the Company shall execute and the Trustee shall promptly
authenticate and mail or deliver to such Holders a new Security equal in
principal amount to any unpurchased portion of the Security surrendered. Any
Securities not so accepted shall be promptly mailed or delivered by the Paying
Agent at the Company's expense to the Holder thereof. For purposes of this
Section 1012, the Company shall choose a Paying Agent which shall not be the
Company.
(i) Subject to applicable escheat laws, the Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest, if any, thereon held by then for the payment of the Offered Price;
provided, however, that (x) to the extent that the aggregate amount of cash
deposited by the Company with the Trustee in respect of a Net Proceeds Offer
exceeds the aggregate Offered Price of the Securities or portions thereof to be
purchased, then the Trustee shall hold such excess for the Company and (y)
unless otherwise directed by the Company in writing, no later than the second
Business Day following the Offer Date the Trustee shall return any such excess
(including, without limitation, monies deposited with respect to an election
which has been withdrawn in accordance with Section 1012(g)) to the Company
together with interest or dividends, if any, thereon.
(j) Securities to be purchased shall, on the Offer Date, become due and
payable at the Offered Price and from and after such date (unless the Company
shall default in the payment of the Offered Price) such Securities shall cease
to bear interest. Such Offered Price shall be paid to such Holder promptly
following the later of the Offer Date and the time of delivery of such Security
to the relevant Paying Agent at the office of such Paying Agent by the Holder
thereof in the manner required. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Offered Price; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Offer Date shall be
payable to the person in whose name the Securities (or any Predecessor
Securities) are registered as such on the relevant Regular Record Dates
according to the terms and the provisions of Section 309: provided, further,
that Securities to be purchased are subject to proration if the Excess Proceeds
are less than the aggregate Offered Price of all Securities tendered for
purchase, with such adjustments as may be appropriate by the Trustee so that
only Securities in denominations of $1,000 or integral multiples thereof, shall
be purchased. If any Security tendered for purchase shall not be so paid upon
surrender thereof by deposit of funds with the Trustee or a Paying Agent in
accordance with Section 1012(g), the principal thereof (and premium, if any,
thereon) shall, until paid, bear interest from the Offer Date at the rate borne
by such Security. Any Security that is to be purchased only in part shall be
surrendered to a Paying Agent at the office of such Paying Agent (with, if the
Company, the Security Registrar or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Security Registrar or the Trustee duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such
94
Security, without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate principal amount equal
to, and in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased. The Company shall publicly announce the
results of the Offer on or as soon as practicable after the Offer Date.
Section 1013. Limitation on Sale, Issuance and Ownership of Capital Stock
of Restricted Subsidiaries.
The Company (i) will not, directly or indirectly, sell or otherwise dispose
of any shares of Capital Stock of a Restricted Subsidiary, (ii) will not permit
any of the Restricted Subsidiaries, directly or indirectly, to issue or sell or
otherwise dispose of any Capital Stock (other than (A) to the Company or a
Wholly-Owned Restricted Subsidiary or (B) to the extent such shares represent
directors' qualifying shares or shares required by applicable law to be held by
a person other than the Company or a Wholly-Owned Subsidiary), (iii) will not
permit any person (other than the Company or a Wholly-Owned Restricted
Subsidiary), directly or indirectly, to own any Capital Stock of any Restricted
Subsidiary except for Capital Stock of a Restricted Subsidiary issued and
outstanding at the time such Restricted Subsidiary became a Subsidiary of the
Company; provided that such Capital Stock was not issued in anticipation of such
person becoming a Subsidiary of the Company and (iv) will not permit any person,
directly or indirectly, to acquire Capital Stock of any Restricted Subsidiary
from the Company or any Wholly-Owned Restricted Subsidiary except upon the
acquisition of all the outstanding Capital Stock of such Restricted Subsidiary
in accordance with the terms of the Indenture.
Section 1014. Limitation on Transactions with Affiliates.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, transfer, disposition, purchase, exchange or lease of assets, property
or services, employee compensation arrangements or the rendering of any service)
with, or for the benefit of, any Affiliate of the Company (other than a Wholly-
Owned Restricted Subsidiary) except (i) on terms that are no less favorable to
the Company or the Restricted Subsidiary, as the case may be, than those which
could have been obtained in a comparable transaction at such time from persons
who do not have such a relationship with the Company, (ii) with respect to any
transaction or series of related transactions involving aggregate payments or
value equal to or greater than $2,000,000, the terms of such transaction or
transactions, as the case may be, shall be set forth in writing and the Company
shall have delivered an Officer's Certificate to the Trustee certifying that
such transaction or series of related transactions comply with the preceding
clause (i), and (iii) with respect to any transaction or series of related
transactions involving aggregate payments or value equal to or greater than
$5,000,000, the terms of such transaction or transactions, as the case may be,
shall be set forth in writing and the Company shall have delivered an Officer's
Certificate to the Trustee certifying that such transaction or series of
transactions (A) comply with the preceding clause (i) and (B) have been approved
by a majority of the Board of Directors of the Company, including a majority of
the Disinterested Directors of the Board of Directors of the Company, or in lieu
of the certification required by the preceding clause (B), the Company shall
have delivered to the Trustee a written opinion of an investment banking firm of
national standing or other recognized independent expert with experience
appraising the terms and conditions of the type of transaction or series of
related transactions for which its opinion is being delivered stating that the
transaction or series of related transactions is fair to the Company or such
Restricted Subsidiary from a financial point of view. For the purposes of the
foregoing, a director of the Company shall not be considered "interested" with
respect to a transaction solely by virtue of being a director of the other party
to such transaction. This Section 1014 will not restrict the Company from (a)
making dividends permitted by Section 1009, (b) paying reasonable and customary
regular fees to directors of the Company who are not employees of the Company,
(c) making loans or advances to officers of the Company and the Restricted
Subsidiaries in the ordinary course of business for bona fide business purposes
of the Company in an aggregate principal amount not to exceed $1,000,000
outstanding at any one time and (d) the
95
Company's employee compensation and other benefit arrangements existing on the
Issue Date or thereafter entered into by the Company or any Restricted
Subsidiary in the ordinary course of business.
Section 1015. Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock or any
other interest or participation in, or measured by, its profits, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
loans or advances to the Company or any other Restricted Subsidiary or (d)
transfer any of its properties or assets to the Company or any other Restricted
Subsidiary (other than any customary restriction on transfers of property
subject to a Lien permitted under this Indenture (other than a Lien on cash not
constituting proceeds of non-cash property subject to a Lien permitted under
this Indenture)), except for such encumbrances or restrictions existing under or
by reason of (i) the mandatory provisions of general applicability of applicable
law or governmental regulation, (ii) customary non-assignment provisions of any
contract or any licensing agreement entered into by the Company or any of the
Restricted Subsidiaries in the ordinary course of business or any lease
governing a leasehold interest of the Company or any Restricted Subsidiary,
(iii) any agreement or other instrument of a person acquired by the Company or
any Restricted Subsidiary in existence at the time of such acquisition (but not
created in contemplation thereof), 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 (including subsequently acquired property
or assets to the extent subject thereto) of the person, so acquired, (iv) any
encumbrance or restriction in the Credit Facility or any other agreement, in
each case, as in effect on the Issue Date and listed in Schedule 1015 hereto, or
otherwise modified from time to time; provided that any such modification is no
less favorable to the holders of Securities (as determined by the Board of
Directors of the Company) than the applicable provision as in effect on the
Issue Date and (v) any encumbrance or restriction pursuant to any agreement that
extends, restructures, refinances, renews, refunds or replaces any agreement
described in clause (ii), (iii) or (iv) of this Section 1015, which is no less
favorable to the holders of Securities (as determined by the Board of Directors
of the Company) than those existing under the agreement being extended,
restructured, refinanced, renewed, refunded or replaced.
Section 1016. Limitation on Certain Senior Subordinated Obligations.
The Company will not, and will not permit any Guarantor or Restricted
Subsidiary which is not a Guarantor to, directly or indirectly, create, incur,
issue, assume, guarantee or otherwise in any manner become directly or
indirectly liable for or with respect to or otherwise permit to exist any
Indebtedness which is expressly subordinate or junior in right of payment in any
respect to any Indebtedness of the Company or such Guarantor or Restricted
Subsidiary which is not a Guarantor, as the case may be, unless such
Indebtedness ranks pari passu in right of payment with the Securities or the
Guarantee of such Guarantor, or is expressly subordinated in right of payment to
the Securities or such Guarantee at least to the same extent as the Securities
or such Guarantee are subordinate in right of payment to Senior Indebtedness or
Guarantor Senior Indebtedness, as the case may be.
Section 1017. Limitations on Designation of Unrestricted Subsidiaries.
(a) The Company may, pursuant to resolution of its Board of Directors,
designate any Subsidiary of the Company as an "Unrestricted Subsidiary" under
this Indenture (a "Designation") only if:
96
(i) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation;
(ii) the Company would be permitted under this Indenture to make an
Investment at the time of such Designation (assuming the effectiveness of
such Designation) in an amount (the "Designation Amount") equal to the Fair
Market Value of the Capital Stock of such Subsidiary on such date;
(iii) the Company would be permitted under this Indenture to incur
$1.00 of additional Indebtedness pursuant to Section 1008(a) at the time of
Designation (assuming the effectiveness of such Designation);
(iv) with respect to the Subsidiary to be designated an Unrestricted
Subsidiary, each of the Company and its Subsidiaries, other than the
Subsidiary to be designated an Unrestricted Subsidiary, is in compliance
with the provisions of clauses (x), (y) and (z) of the next following
clause (v) as if such Subsidiary to be so designated had been and is an
Unrestricted Subsidiary for all purposes of such clauses, at the time of,
and after giving effect to, such Designation (assuming the effectiveness of
such Designation); and
(v) the Subsidiary to be designated an Unrestricted Subsidiary, or any
Subsidiary thereof, owns no Capital Stock or Indebtedness of, owes no
Indebtedness to, or holds no Lien on any property of, the Company or any
other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated at the time of or after giving effect to such
Designation (assuming the effectiveness of such Designation).
(b) In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
1009 for all purposes of this Indenture in the Designation Amount. The Company
shall not and shall not permit any Restricted Subsidiary to, directly or
indirectly, at any time (x) provide credit support for, or a guarantee of, any
Indebtedness of any Unrestricted Subsidiary (including any undertaking,
agreement or instrument evidencing such Indebtedness), (y) be directly or
indirectly liable for any Indebtedness of an Unrestricted Subsidiary or (z) be
directly or indirectly liable for any Indebtedness which provides that the
holder thereof may (upon notice, lapse of time or both) declare a default
thereon or cause the payment thereof to be accelerated or payable prior to its
final scheduled maturity upon the occurrence of a default with respect to any
Indebtedness of any Unrestricted Subsidiary (including any right to take
enforcement action against such Unrestricted Subsidiary), except in the case of
clause (x) or (y) of this Section 1017(b) to the extent permitted under Section
1009.
(c) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(i) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation; and
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of the
Indenture.
(d) All Designations and Revocations must be evidenced by Board Resolutions
of the Company delivered to the Trustee certifying compliance with the foregoing
provisions.
97
Section 1018. Limitation on Non-Guarantor Restricted Subsidiaries.
(a) The Company will not permit any Restricted Subsidiary, other than the
Guarantors, directly or indirectly, to secure the payment of any Senior
Indebtedness, and the Company will not, and will not permit any Restricted
Subsidiary to, pledge any intercompany notes representing obligations of any
Restricted Subsidiary (other than the Guarantors) to secure the payment of any
Senior Indebtedness, unless in each case such Restricted Subsidiary
simultaneously executes and delivers a supplemental indenture to the Indenture
providing for a guarantee of payment of the Securities by such Restricted
Subsidiary, which guarantee shall be on the same terms as the guarantee of the
Senior Indebtedness (if a guarantee of Senior Indebtedness is granted by any
such Restricted Subsidiary) except that the guarantee of the Securities need not
be secured and shall be subordinated to the claims against such Restricted
Subsidiary in respect of Senior Indebtedness to the same extent as the
Securities are subordinated to Senior Indebtedness under this Indenture.
(b) The Company will not permit any Restricted Subsidiary which is not a
Guarantor to incur any Indebtedness (other than Acquired Indebtedness) or
guarantee the payment of any Indebtedness of the Company or any other Restricted
Subsidiary unless (i) such Restricted Subsidiary simultaneously executes and
delivers a supplemental indenture to this Indenture providing for a Guarantee of
the Securities by such Restricted Subsidiary, which Guarantee will be
subordinated to Guarantor Senior Indebtedness (but no other Indebtedness) to the
same extent that the Securities are subordinated to Senior Indebtedness and
(ii), with respect to any guarantee of Subordinated Obligations by a Restricted
Subsidiary, any such guarantee shall be subordinated to such Restricted
Subsidiary's Guarantee at least to the same extent as such Subordinated
Obligations is subordinated to the Securities.
(c) With respect to each supplemental indenture to this Indenture delivered
pursuant to Section 1018(a) and Section 1018(b), (i) each such Restricted
Subsidiary shall waive, and agree not in any manner whatsoever to claim to take
the benefit or advantage of, any rights of reimbursement, indemnity or
subrogation or any other rights against the Company or any other Restricted
Subsidiary as a result of any payment by such Restricted Subsidiary under its
Guarantee until such time as the obligations guaranteed thereby are paid in full
and (ii) such Restricted Subsidiary shall deliver to the Trustee an Opinion of
Independent Counsel to the effect that such Guarantee has been duly executed and
authorized and constitutes a valid, binding and enforceable obligation of such
Restricted Subsidiary, except insofar as enforcement thereof may be limited by
bankruptcy, insolvency or similar laws (including, without limitation, all laws
relating to fraudulent transfer and fraudulent conveyances) and except insofar
as enforcement thereof is subject to general principles of equity.
(d) Subject to the requirements (if any) described under Article Eight, any
Guarantee by a Restricted Subsidiary of the Securities shall be automatically
and unconditionally released and discharged (i) upon any sale, exchange or
transfer, to any person not an Affiliate of the Company, of all of the Company's
Capital Stock in, or all or substantially all the assets of, such Restricted
Subsidiary, which transaction is in compliance with the terms of the Indenture
(including compliance with Section 1012 in respect thereto and the providing, in
connection therewith, by the Company to the Trustee of an Officer's Certificate
to the effect that the Company will comply with its obligations under Section
1012 in respect of any such dispositions) and such Restricted Subsidiary is
released from all guarantees and other security, if any, by it of other
Indebtedness of the Company or any Restricted Subsidiaries or (ii) at the
request of the Company, if the holders of the Indebtedness of the Company or any
other Restricted Subsidiary, as the case may be, described in Section 1018(a)
and Section 1018(b) unconditionally release their guarantee or Lien, as the case
may be, of such Restricted Subsidiary (including any deemed release upon payment
in full of all obligations under such Indebtedness), such release and discharge
to be effective at such time as, and for such periods that, (A) no other
Indebtedness of the Company or any other Restricted Subsidiary, as the case may
be, has been secured or guaranteed by such Restricted Subsidiary, as the case
may be, and (B) the holders of all such other Indebtedness which is guaranteed
by such Restricted Subsidiary also unconditionally release their guarantee by,
or Lien in assets or
98
properties of, such Restricted Subsidiary (including any deemed release upon
payment in full of all obligations under such Indebtedness).
Section 1019. Reporting Requirements.
(a) Whether or not the Company or any Guarantor is subject to Section 13(a)
or 15(d) of the Exchange Act, the Company and such Guarantor will, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which the Company and such Guarantor would
have been required to file with the Commission pursuant to such Section 13(a) or
15(d) if the Company and such Guarantor were so subject, such documents to be
filed with the Commission on or prior to the date (the "Required Filing Date")
by which the Company and such Guarantor would have been required so to file such
documents if the Company and such Guarantor were so subject. The Company and
such Guarantor will also in any event (i) within 30 days of each Required Filing
Date (A) transmit by mail to all Holders, as their names and addresses appear in
the Security Register, without cost to such Holders and (B) file with the
Trustee copies of the annual reports, quarterly reports and other documents
which the Company and such Guarantor would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if the Company
and such Guarantor were subject to either of such Sections and (ii) if filing
such documents by the Company and such Guarantor with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's and such Guarantor's cost.
(b) The Company will deliver to the Trustee, on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the end of each fiscal year of the Company ending after the date hereof, a
written statement signed by two executive officers of the Company, one of whom
shall be the principal executive officer, principal financial officer or
principal accounting officer of the Company, as to compliance herewith,
including whether or not, after a review of the activities of the Company and
each Guarantor during such year or such quarter and of the Company's and each
Guarantor's performance under this Indenture, to the best knowledge, based on
such review, of the signers thereof, no Default or Event of Default exists, or
if a Default exists, specifying the nature and status thereof and any actions
being taken by the Company and the Guarantors with respect thereto.
(c) When any Default or Event of Default has occurred and is continuing, or
if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Company or any Subsidiary gives any notice or
takes any other action with respect to a claimed default, the Company shall
deliver to the Trustee by registered or certified mail or facsimile transmission
followed by hard copy an Officers' Certificate specifying such Default, Event of
Default, notice or other action, the status thereof and what actions the Company
and the Guarantors are taking or propose to take with respect thereto, within 10
Business Days of its occurrence; provided, however, any Default based upon non-
compliance with the notification requirements of this Section 1019(c) may be (i)
expressly waived or (ii) cured if the event giving rise to the requirement for
such notification shall have been waived or cured, in each case, in accordance
with the terms of this Indenture.
Section 1020. Waiver of Certain Covenants.
The Company and the Guarantors may omit in any particular instance to
comply with any covenant or condition set forth in Sections 1006 through 1010
and 1013 through 1019(a), if, before or after the time for such compliance, the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding shall, by Act of such Holders, waive such
compliance in such instance with such covenant or provision, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
99
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
Section 1021. Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law which would prohibit or forgive the
Company or any Guarantor, as the case may be, from paying all or any portion of
the principal of, premium, if any, or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantors hereby expressly waives (to the extent that it may
lawfully do so) 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 ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Rights of Redemption.
(a) The Securities are subject to redemption at any time on or December 15,
2002, at the option of the Company, in whole or in part, subject to the
conditions, and at the Redemption Prices, specified in the form of Security,
together with accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on relevant Regular Record Dates and
Special Record Dates to receive interest due on relevant Interest Payment Dates
and Special Payment Dates).
(b) At any time prior to December 1, 2000, the Company may, at its option,
use the net proceeds of one or more Public Equity Offerings to redeem up to an
aggregate of 35% of the aggregate principal amount of Securities originally
issued under this Indenture at a redemption price equal to 108.625% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the redemption date; provided that at least $81,250,000 aggregate
principal amount of the Securities remains outstanding immediately after the
occurrence of such redemption. In order to effect the foregoing redemption, the
Company must mail a notice of redemption no later than 30 days after the closing
of the related Public Equity Offering and must consummate such redemption within
60 days of the closing of the Public Equity Offering.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article Eleven.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to Section
1101 shall be evidenced by a Company Order and an Officers' Certificate. In
case of any redemption at the election of the Company, the Company shall, not
less than 30 nor more than 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice period shall be satisfactory to the Trustee),
notify the Trustee in writing of such Redemption Date and of the principal
amount of Securities to be redeemed.
100
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed at any time, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 30 days prior to the Redemption Date. The Trustee shall select the
Securities or portions thereof to be redeemed in compliance with any applicable
requirements of the principal national securities exchange, if any, on which the
Securities are listed or, if the Securities are not then listed on a national
securities exchange (or if the Securities are so listed but such exchange does
not impose requirements with respect to the selection of debt securities for
redemption), on a pro rata basis, by lot or by such method as the Trustee in its
sole discretion shall deem fair and appropriate. The amounts to be redeemed
shall be equal to $1,000 or any integral multiple thereof.
The Trustee shall promptly notify the Company and the Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 days nor more than 60 days prior to the Redemption Date,
to each Holder of Securities to be redeemed, at its address appearing in the
Security Register. If the redemption is pursuant to Section 1101(b), notice of
redemption shall be mailed no later than 30 days after the closing of the
related Public Equity Offering.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all Outstanding Securities are to be redeemed, the
identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the principal amount
of such Security to be redeemed and that after the Redemption Date upon
surrender of such Security, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(e) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(f) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof to be redeemed, and that
(unless the Company shall default in payment of the Redemption Price) interest
thereon shall cease to accrue on and after said date;
(g) the names and addresses of the Paying Agent and the offices or agencies
referred to in Section 1002 where such Securities are to be surrendered for
payment of the Redemption Price;
(h) subject to Section 310, the CUSIP number, if any, relating to such
Securities; and
101
(i) the procedures that a Holder must follow to surrender the Securities to
be redeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company. If the Company
elects to give notice of redemption, it shall provide the Trustee with a
certificate stating that such notice has been given in compliance with the
requirements of this Section 1105.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Security designated for redemption as a whole or in part shall not
affect the validity of the proceedings for the redemption of any other Security.
Section 1106. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company or any of its Affiliates is
acting as Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in same day funds sufficient to pay timely the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date
or Special Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date. The Paying Agent shall promptly
mail or deliver to Holders of Securities so redeemed payment in an amount equal
to the Redemption Price of the Securities purchased from each such Holder. All
money, if any, earned on funds held in trust by the Trustee or any Paying Agent
shall be remitted to the Company. For purposes of this Section 1106, the
Company shall choose a Paying Agent which shall not be the Company.
Section 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrue
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price together with accrued and unpaid
interest to the Redemption Date; provided, however, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates and Special
Record Dates according to the terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate borne by such Security.
Section 1108. Securities Redeemed or Purchased in Part.
Any Security which is to be redeemed or purchased only in part shall be
surrendered to the Paying Agent at the office or agency maintained for such
purpose pursuant to Section 1002 (with, if the Company, the Security Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company, the Security Registrar or the
Trustee, as the case may be, duly executed by, the Holder thereof or such
Holder's attorney duly authorized in writing), and the Company shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed or purchased.
102
ARTICLE TWELVE
SATISFACTION AND DISCHARGE
Section 1201. Satisfaction and Discharge of Indenture.
This Indenture shall, upon request of the Company, be discharged and shall
cease to be of further effect (except as to surviving rights of registration of
transfer or exchange of Securities and payments thereon as expressly provided
for herein and as provided in the last paragraph of this Section 1201(a)) as to
all Outstanding Securities hereunder, and the Trustee, upon Company Request and
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and delivered (other
than (i) lost, stolen or destroyed Securities which have been replaced or
paid as provided in Section 308 or (ii) all Securities for whose payment
(x) cash in United States dollars or (y) U.S. Government Obligations
maturing as to principal, premium (if any) and interest in such amounts of
money and at such times as are sufficient without consideration of any
reinvestment of such interest, to pay principal of and interest on the
Outstanding Securities not later than one day before the due date of any
payment, have theretofore been deposited in trust with the Trustee or any
Paying Agent) have been delivered to the Trustee for cancellation; or
(2) all such Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, (ii) will become due and
payable at their Stated Maturity within one year or (iii) are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company; and the Company or any Guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust an amount in United States dollars sufficient to pay and
discharge the entire Indebtedness on the Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest to
the date of such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as the case may
be, together with instructions from the Company irrevocably directing the
Trustee to apply such funds to the payment thereof at maturity or
redemption, as the case may be;
(b) the Company or any Guarantor has paid or caused to be paid all other
sums due and payable hereunder by the Company and any Guarantor; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Independent Counsel, in form and substance reasonably satisfactory
to the Trustee, which, taken together, state that (i) all conditions precedent
herein relating to the satisfaction and discharge hereof have been complied with
and (ii) such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument to which the Company, any Guarantor or any
Subsidiary is a party or by which the Company, any Guarantor or any Subsidiary
is bound.
Notwithstanding the satisfaction and discharge hereof, (A) the obligations
of the Company to the Trustee under Section 607 and, if United States dollars
shall have been deposited with the Trustee pursuant to clause (a) of this
Section 1201, the obligations of the Trustee under Section 1202 and the last
paragraph of Section 1003 shall survive, and (B) the Company's obligations under
this Indenture and the
103
Securities and any Guarantor's obligations under the Indenture and any Guarantee
shall be revived and reinstated, as and to the extent provided in, and subject
to the provisions of, Section 406, as therein referenced.
Section 1202. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all United
States dollars and U.S. Government Obligations deposited with the Trustee
pursuant to Section 1201 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 of, premium if any, and interest on, the Securities for whose
payment such United States dollars or U.S. Government Obligations have been
deposited with the Trustee.
ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
Section 1301. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by such
Holder's acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article, the Indebtedness
represented by the Securities and the payment of the principal of, premium, if
any, and interest on, the Securities are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior payment in
full of the Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all persons,
who, in reliance upon such provisions, become, holders of, or continue to hold
Senior Indebtedness; and such provisions are made for the benefit of the holders
of Senior Indebtedness; and such holders are made obligees hereunder and they or
each of them may enforce such provisions as provided herein.
Section 1302. Payment Over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company (or to its creditors, as such) or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary, or whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of the Company, then and in any
such event:
(1) the holders of Senior Indebtedness shall be entitled to receive payment
in full of all amounts due on or in respect of Senior Indebtedness before the
Holders of the Securities are entitled to receive any payment or distribution of
any kind or character (excluding securities of the Company as reorganized or
readjusted or securities of the Company or any other corporation provided for by
a plan of reorganization or readjustment the payment of which are subordinated
in right of payment to all Senior Indebtedness, that may be outstanding, at
least to the extent as, or to a greater extent than, the Securities are so
subordinated as provided in this Article ("Permitted Junior Securities")) on
account of the principal of, premium, if any, or interest on the Securities or
on account of the purchase, redemption, defeasance or other acquisition of, or
in respect of, the Securities (other than amounts previously set aside with the
Trustee, or payments previously made, in either case, pursuant to the provisions
of Sections 402 and 403 of this Indenture); and
104
(2) any payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (excluding Permitted Junior
Securities), by set-off or otherwise, to which the Holders or the Trustee would
be entitled but for the provisions of this Article shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably according to the aggregate amounts remaining
unpaid on account of the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) if, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security, shall have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (excluding Permitted Junior Securities), in respect of
principal, premium, if any, and interest on the Securities or on account of the
purchase, redemption, defeasance or other acquisition of, or in respect of, the
Securities (other than amounts previously set aside with the Trustee, or
payments previously made, in either case, pursuant to Sections 402 and 403 of
this Indenture) before all Senior Indebtedness is paid in full, then and in such
event such payment or distribution (excluding Permitted Junior Securities) shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payments
or distributions of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness; and
(4) the Trustee shall execute and deliver to any Senior Representative all
such further instruments as shall be reasonably requested confirming the
subordination of the Securities pursuant to this Article Thirteen.
The consolidation of the Company with, or the merger of the Company with or
into, another person or the liquidation or dissolution of the Company following
the sale, assignment, conveyance, transfer, lease or other disposal of its
properties and assets substantially as an entirety to another person upon the
terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of the Company for the
purposes of this Section if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposal, agree to be bound by the subordination provisions contained in
Article Thirteen of this Indenture and each of the conditions set forth in
Section 801 (as in effect on the date hereof shall have been satisfied in full.
Section 1303. Suspension of Payment When Designated Senior Indebtedness in
Default.
(a) Unless Section 1302 shall be applicable, upon the occurrence and during
the continuance of any default in the payment of any principal of, premium, if
any, or interest on, or unreimbursed amounts under drawn letters of credit or
fees relating to letters of credit constituting, any Designated Senior
Indebtedness beyond any applicable grace period (a "Payment Default") and after
the receipt by the Trustee from a Senior Representative of any Designated Senior
Indebtedness of written notice of such default, no payment (other than amounts
previously set aside with the Trustee or payments previously made, in either
case, pursuant to Section 402 or 403 in this Indenture) or distribution of any
assets of the Company or any Subsidiary of any kind or character (excluding
Permitted Junior Securities) may be made by the Company or any Subsidiary on
account of the principal of, premium, if any, or interest on, the Securities, or
on account of the purchase, redemption, defeasance or other acquisition of or in
respect of, the Securities unless and until such Payment Default shall have been
cured or waived or shall have
105
ceased to exist or the Designated Senior Indebtedness shall have been discharged
or paid in full in cash or cash equivalents, after which the Company shall
(subject to the other provisions of this Article Thirteen) resume making any and
all required payments in respect of the Securities, including any missed
payments.
(b) Unless Section 1302 shall be applicable, (1) upon the occurrence and
during the continuance of any default other than a Payment Default with respect
to any Designated Senior Indebtedness pursuant to which the maturity thereof may
then be accelerated immediately (a "Non-payment Default") and (2) after the
receipt by the Trustee and the Company from a Senior Representative of any
Designated Senior Indebtedness of written notice of such Non-payment Default, no
payment (other than any amounts previously set aside with the Trustee, or
payments previously made, in either case, pursuant to the provisions of Sections
402 or 403 in this Indenture) or distribution of any assets of the Company of
any kind or character (excluding Permitted Junior Securities) may be made by the
Company or any Subsidiary on account of the principal of, premium, if any, or
interest on, the Securities, or on account of the purchase, redemption,
defeasance or other acquisition of, or in respect of, the Securities for the
period specified below ("Payment Blockage Period").
(c) The Payment Blockage Period shall commence upon the receipt of notice
of the Non-payment Default by the Trustee and the Company from a Senior
Representative stating that such notice is a payment blockage notice pursuant to
this Indenture and shall end on the earliest to occur of the following events:
(i) 179 days shall have elapsed since the receipt by the Trustee of such notice,
(ii) the date, as set forth in a written notice to the Company or Trustee from a
Senior Representative initiating such Payment Blockage Period, on which such
Non-Payment Default (and all Non-payment Defaults as to which notice is given
after such Payment Blockage Period is initiated) is cured or waived or ceases to
exist (provided that no other Payment Default or Non-payment Default has
occurred or is then continuing after giving effect to such cure or waiver) or on
which such Designated Senior Indebtedness is discharged or paid in full, or
(iii) the date, set forth in a written notice to the Company or Trustee from a
Senior Representative initiating such Payment Blockage Period, on which such
Payment Blockage Period (and all Non-payment Defaults as to which notice is
given after such Payment Blockage Period is initiated) shall have been
terminated by written notice to the Company or the Trustee from the Senior
Representative initiating such Payment Blockage Period, after which, in the case
of the immediately preceding clauses (i), (ii) and (iii), the Company, subject
to the subordination provisions set forth above and the existence of another
Payment Default, shall promptly resume making any and all required payments in
respect of the Securities, including any missed payments. Only one Payment
Blockage Period with respect to the Securities may be commenced within any 360
consecutive day period. No Non-payment Default with respect to Designated
Senior Indebtedness that existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Indebtedness initiating such Payment Blockage Period will be, or can be,
made the basis for the commencement of a second Payment Blockage Period, whether
or not within a period of 360 consecutive days, unless such default has been
cured or waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial covenant
for a period commencing after the date of commencement of such Payment Blockage
Period, that, in either case, would give rise to a Non-payment Default pursuant
to any provision under which a Non-payment Default previously existed or was
continuing shall constitute a new Non-payment Default for this purpose; provided
that, in the case of a breach of a particular financial covenant, the Company
shall have been in compliance for at least one full 90 consecutive day period
commencing after the date of commencement of such Payment Blockage Period). In
no event will a Payment Blockage Period extend beyond 179 days from the date of
the receipt by the Trustee of the notice, and there must be a 181 consecutive
day period in any 360-day period during which no Payment Blockage Period is in
effect. The Company shall deliver a notice to the Trustee promptly after the
date on which any Non-payment Default is cured or waived in writing or ceases to
exist or on which the Designated Senior Indebtedness related thereto is
discharged or paid in full, and the Trustee is authorized to act in reliance on
such notice.
106
(d) If, notwithstanding the foregoing, the Company shall make any payment
or distribution of any assets of the Company or any Subsidiary of any kind or
character (excluding Permitted Junior Securities) to the Trustee or the Holder
of any Security prohibited by the foregoing provisions of this Section, then and
in such event such payment shall be held in trust for the holders of Senior
Indebtedness and paid over and delivered forthwith to a Senior Representative of
the holders of the Designated Senior Indebtedness or as a court of competent
jurisdiction shall direct.
Section 1304. Payment Permitted if No Default.
Nothing contained in this Article, elsewhere in this Indenture or in any of
the Securities shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding-up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of the Company referred to in Section 1302 or under the conditions
described in Section 1303, from making payments at any time of principal of,
premium, if any, or interest on the Securities.
Section 1305. Subrogation to Rights of Holders of Senior Indebtedness.
After the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of,
premium, if any, and interest on, the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
Senior Indebtedness of any cash property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 1306. Provisions Solely to Define Relative Rights.
The provisions of this Article are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of, premium, if any, and interest on, the Securities as
and when the same shall become due and payable in accordance with their terms;
or (b) affect the relative rights against the Company or the Holders of the
Securities and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshaling of
assets and liabilities of the Company referred to in Section 1302, to receive,
pursuant to and in accordance with such Section, cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder, or (2) under the
conditions specified in Section 1303, to prevent any payment prohibited by such
Section or enforce their rights pursuant to Section 1303(d).
Section 1307. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such Holder's attorney-in-fact for any and all
such purposes including, in the event of any dissolution, winding-up,
liquidation or reorganization of
107
the Company whether in bankruptcy, insolvency, receivership proceedings, or
otherwise, the timely filing of a claim for the unpaid balance of the
indebtedness of the Company owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved.
Section 1308. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder or any Senior
Representative, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section 1308,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (1) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (2) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (3) release any person liable in any manner for the collection or
payment of Senior Indebtedness; (4) exercise or refrain from exercising any
rights against the Company and any other person; and (5) sell, assign or
transfer the Senior Indebtedness to any person; provided, however, that in no
event shall any such actions limit the right of the Holders of the Securities to
take any action to accelerate the maturity of the Securities pursuant to Article
Five of this Indenture or to pursue any rights or remedies hereunder or under
applicable laws if the taking of such action does not otherwise violate the
terms of this Article.
Section 1309. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from a
Senior Representative or any trustee, fiduciary or agent therefor; and, prior to
the receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a
Responsible Officer of the Trustee shall not have received the notice provided
for in this Section by Noon, Eastern Time, on the Business Day prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, or interest on any Security), then, anything herein contained to the
contrary notwithstanding but without limiting the rights and remedies of the
holders of Senior Indebtedness, a Senior Representative or any trustee,
fiduciary or agent thereof, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it after such date; nor shall the Trustee be charged with knowledge
of the curing of any such default or the elimination of the act or condition
preventing any such payment unless and until the Trustee shall have received an
Officers' Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and the Company by a person which represents
itself as a Senior Representative or a holder of Senior
108
Indebtedness (or a trustee, fiduciary or agent there for) to establish that such
notice has been given by a Senior Representative or a holder of Senior
Indebtedness (or a trustee, fiduciary or agent therefor); provided, however,
that failure to give such notice to the Company shall not affect in any way the
ability of the Trustee to rely on such notice. If the Trustee determines in
good faith that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such person pending
judicial determination as to the right of such person to receive such payment.
Section 1310. Reliance on Judicial Orders or Certificates.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other person making
such payment or distribution, or a certificate of a Senior Representative
delivered to the Trustee or to the Holders of Securities for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article,
provided that the foregoing shall apply only if such court has been fully
apprised of the provisions of this Article.
Section 1311. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
Section 1312. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1311 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1313. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee or
the Holders of Securities to take any action to accelerate the maturity of the
Securities pursuant to Article Five of this Indenture or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights if any, under
this Article of the holders, from time to time, of Senior Indebtedness to
receive the cash, property or securities receivable from the Company or any
Subsidiary upon the exercise of such rights or remedies.
109
Section 1314. Trustee's Relation to Senior Indebtedness.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article, and no implied covenants or obligations
with respect to the holders of Senior Indebtedness shall be read into this
Article against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the Holders of Senior Indebtedness and the Trustee shall not
be liable to any holder of Senior Indebtedness if it shall in good faith
mistakenly (absent negligence or willful misconduct) pay over or deliver to
Holders, the Company or any other person moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
ARTICLE FOURTEEN
GUARANTEES
Section 1401. Guarantors' Guarantee.
For value received, each of the Guarantors, in accordance with this Article
Fourteen, hereby absolutely, unconditionally and irrevocably guarantees, jointly
and severally, to the Trustee and the Holders, as if the Guarantors were the
principal debtor, the punctual payment and performance when due of all Indenture
Obligations (which for purposes of this Guarantee shall also be deemed to
include all commissions, fees, charges, costs and other expenses (including
reasonable legal fees and disbursements of one counsel) arising out of or
incurred by the Trustee or the Holders in connection with the enforcement of
this Guarantee).
Section 1402. Continuing Guarantee; No Right of Set-Off: Independent
Obligation.
(a) This Guarantee shall be a continuing guarantee of the payment and
performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
or the Holders; and this Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. Each Guarantor, jointly and severally, covenants and
agrees to comply with all obligations, covenants, agreements and provisions
applicable to it in this Indenture including those set forth in Article Eight.
Without limiting the generality of the foregoing, each Guarantor's liability
shall extend to all amounts which constitute part of the Indenture Obligations
and would be owed by the Company under this Indenture and the Securities but for
the fact that they are unenforceable, reduced, limited, impaired, suspended or
not allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
(b) Each Guarantor, jointly and severally, hereby guarantees that the
Indenture Obligations will be paid to the Trustee without set-off or
counterclaim or other reduction whatsoever (whether for taxes, withholding or
otherwise) in lawful currency of the United States of America.
(c) Each Guarantor, jointly and severally, guarantees that the Indenture
Obligations shall be paid strictly in accordance with their terms regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the holders of the Securities.
(d) Each Guarantor's liability to pay or perform or cause the performance
of the Indenture Obligations under this Guarantee shall arise forthwith after
demand for payment or performance by the Trustee has been given to the
Guarantors in the manner prescribed in Section 106 hereof.
110
(e) Except as provided herein, the provisions of this Article Fourteen
cover all agreements between the parties hereto relative to this Guarantee and
none of the parties shall be bound by any representation, warranty or promise
made by any person relative thereto which is not embodied herein; and it is
specifically acknowledged and agreed that this Guarantee has been delivered by
each Guarantor free of any conditions whatsoever and that no representations,
warranties or promises have been made to any Guarantor affecting its liabilities
hereunder, and that the Trustee shall not be bound by any representations,
warranties or promises now or at any time hereafter made by the Company to any
Guarantor.
(f) This Guarantee is a guarantee of payment, performance and compliance
and not of collectibility and is in no way conditioned or contingent upon any
attempt to collect from or enforce performance or compliance by the Company or
upon any event or condition whatsoever.
(g) The obligations of the Guarantors set forth herein constitute the full
recourse obligations of the Guarantors enforceable against them to the full
extent of all their assets and properties.
Section 1403. Guarantee Absolute.
The obligations of the Guarantor hereunder are independent of the
obligations of the Company under the Securities and this Indenture and a
separate action or actions may be brought and prosecuted against any Guarantor
whether or not an action or proceeding is brought against the Company and
whether or not the Company is joined in any such action or proceeding. The
liability of the Guarantors hereunder is irrevocable, absolute and unconditional
and (to the extent permitted by law) the liability and obligations of the
Guarantors hereunder shall not be released, discharged, mitigated, waived
impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any
Indebtedness or other obligation of the Company or any other person under this
Indenture or the Securities, or any agreement or instrument relating to any of
the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend to, or
make with, the Company, any Guarantor or any other person, or any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Indenture Obligations, or any other amendment or waiver of, or any consent to or
departure from, this Indenture or the Securities, including any increase or
decrease in the Indenture Obligations;
(c) the taking of security from the Company, any Guarantor or any other
person, and the release, discharge or alteration of, or other dealing with, such
security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of any Guarantor hereunder;
(e) the abstention from taking security from the Company, any Guarantor or
any other person or from perfecting, continuing to keep perfected or taking
advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any security
received from the Company, any Guarantor or any other person, and including any
other guarantees received by the Trustee;
111
(g) any other dealings with the Company, any Guarantor or any other person,
or with any security;
(h) the Trustee's or the Holders' acceptance of compositions from the
Company or any Guarantor;
(i) the application by the Holder or the Trustee of all monies at any time
and from time to time received from the Company, any Guarantor or any other
person on account of any indebtedness and liabilities owing by the Company or
any Guarantor to the Trustee or the Holders, in such manner as the Trustee or
the Holders deems best and the changing of such application in whole or in part
and at any time or from time to time, or any manner of application of
collateral, or proceeds thereof, to all or any of the Indenture Obligations, or
the manner of sale of any collateral;
(j) the release or discharge of the Company or any Guarantor of the
Securities or of any person liable directly as surety or otherwise by operation
of law or otherwise for the Securities, other than an express release in writing
given by the Trustee, on behalf of the Holders, of the liability and obligations
of any Guarantor hereunder:
(k) any change in the name, business, capital structure or governing
instrument of the Company or any Guarantor or any refinancing or restructuring
of any of the Indenture Obligations;
(l) the sale of the Company's or any Guarantor's business or any part
thereof;
(m) subject to Section 1414, any merger or consolidation, arrangement or
reorganization of the Company, any Guarantor, any person resulting from the
merger or consolidation of the Company or any Guarantor with any other person or
any other successor to such person or merged or consolidated person or any other
change in the corporate existence, structure or ownership of the Company or any
Guarantor or any change in the corporate relationship between the Company and
any Guarantor, or any termination of such relationship;
(n) the insolvency, bankruptcy, liquidation winding-up, dissolution,
receivership, arrangement, readjustment, assignment for the benefit of creditors
or distribution of the assets of the Company or its assets or any resulting
discharge of any obligations of the Company (whether voluntary or involuntary)
or of any Guarantor (whether voluntary or involuntary) or the loss of corporate
existence;
(o) subject to Section 1414, any arrangement or plan of reorganization
affecting the Company or any Guarantor;
(p) any failure, omission or delay on the part of the Company to conform or
comply with any term of this Indenture;
(q) any limitation on the liability or obligations of the Company or any
other person under this Indenture, or any discharge, termination cancellation,
distribution, irregularity, invalidity or unenforceability in whole or in part
of this Indenture;
(r) any other circumstance (including any statute of limitations) that
might otherwise constitute a defense available to, or discharge of, the Company
or any Guarantor; or
(s) any modification, compromise, settlement or release by the Trustee, or
by operation of law or otherwise, of the Indenture Obligations or the liability
of the Company or any other obligor under the Securities, in whole or in part,
and any refusal of payment by the Trustee, in whole or in part, from any other
obligor or other guarantor in connection with any of the Indenture Obligations,
whether or not with notice to, or further assent by, or any reservation of
rights against, each of the Guarantors.
112
Section 1404. Right to Demand Full Performance.
In the event of any demand for payment or performance by the Trustee from
any Guarantor hereunder, the Trustee or the Holders shall have the right to
demand its full claim and to receive all dividends or other payments in respect
thereof until the Indenture Obligations have been paid in full, and the
Guarantors shall continue to be jointly and severally liable hereunder for any
balance which may be owing to the Trustee or the Holders by the Company under
this Indenture and the Securities. The retention by the Trustee or the Holders
of any security, prior to the realization by the Trustee or the Holders of its
rights to such security upon foreclosure thereon, shall not, as between the
Trustee and any Guarantor, be considered as a purchase of such security, or as
payment, satisfaction or reduction of the Indenture Obligations due to the
Trustee or the Holders by the Company or any part thereof. Each Guarantor,
promptly after demand, will reimburse the Trustee and the Holders for all costs
and expenses of collecting such amount under, or enforcing this Guarantee,
including, without limitation, the reasonable fees and expenses of counsel.
Section 1405. Waivers.
(a) Each Guarantor hereby expressly waives (to the extent permitted by law)
notice of the acceptance of this Guarantee and notice of the existence, renewal
extension or the non-performance, non-payment, or non-observance on the part of
the Company of any of the terms, covenants, conditions and provisions of this
Indenture or the Securities or any other notice whatsoever to or upon the
Company or such Guarantor with respect to the Indenture Obligations, whether by
statute, rule of law or otherwise. Each Guarantor hereby acknowledges
communication to it of the terms of this Indenture and the Securities, and all
of the provisions therein contained and consents to and approves the same. Each
Guarantor hereby expressly waives (to the extent permitted by law) diligence,
presentment, protest and demand for payment with respect to (i) any notice of
sale, transfer or other disposition of any right, title to or interest in the
Securities by the Holders or in this Indenture, (ii) any release of any
Guarantor from its obligations hereunder resulting from any loss by it of its
rights of subrogation hereunder and (iii) any other circumstances whatsoever
that might otherwise constitute a legal or equitable discharge, release or
defense of a guarantor or surety or that might otherwise limit recourse against
such Guarantor.
(b) Without prejudice to any of the rights or recourses which the Trustee
or the Holders may have against the Company, each Guarantor hereby expressly
waives (to the extent permitted by law) any right to require the Trustee or the
Holders to:
(i) enforce, assert, exercise, initiate or exhaust any rights,
remedies or recourse against the Company, any Guarantor or any other person
under this Indenture or otherwise;
(ii) value, realize upon, or dispose of any security of the Company or
any other person held by the Trustee or the Holders;
(iii) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity; or
(iv) mitigate the damages resulting from any default under this
Indenture;
before requiring or becoming entitled to demand payment from such Guarantor
under this Guarantee.
Section 1406. The Guarantors Remain Obligated if the Company is No Longer
Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Guarantors that if for
any reason the Company has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations
113
owing to the Trustee or the Holders by the Company or if any of the Indenture
Obligations owing to the Company to the Trustee or the Holders becomes
irrecoverable from the Company by operation of law or for any reason whatsoever,
this Guarantee and the covenants, agreements and obligations of the Guarantors
contained in this Article Fourteen shall nevertheless be binding upon the
Guarantors, as principal debtor, until such time as all such Indenture
Obligations have been paid in full to the Trustee and all Indenture Obligations
owing to the Trustee or the Holders by the Company have been discharged, or such
earlier time as Section 402 shall apply to the Securities, and the Guarantors
shall be responsible for the payment thereof to the Trustee or the Holders upon
demand.
Section 1407. Fraudulent Conveyance: Contribution; Subrogation.
(a) Any term or provision of this Guarantee to the contrary
notwithstanding, the aggregate amount of the Indenture Obligations guaranteed
hereunder shall be reduced to the extent necessary to prevent this Guarantee
from violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
(b) 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 net assets of each Guarantor, determined in accordance with
GAAP.
(c) Each Guarantor shall be subrogated to all rights of Holders against the
Company in respect of any amounts paid by any Guarantor pursuant to the
provisions of this Article Fourteen; provided that, if an Event of Default has
occurred and is continuing, no Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of subrogation until 91
days after all amounts due and payable by the Company under this Indenture or
the Securities shall have been paid in full.
Section 1408. Guarantee is in Addition to Other Security.
This Guarantee shall be in addition to and not in substitution for any
other guarantees or other security which the Trustee may) now or hereafter hold
in respect of the Indenture Obligations owing to the Trustee or the Holders by
the Company, and (except as may be required by law) the Trustee shall be under
no obligation to marshal in favor of each of the Guarantors any other guarantees
or other security or any moneys or other assets which the Trustee may be
entitled to receive or upon which the Trustee or the Holders may have a claim.
Section 1409. Release of Security Interests.
Without limiting the generality of the foregoing and except as otherwise
provided in this Indenture, each Guarantor hereby consents and agrees, to the
fullest extent permitted by applicable law, that the rights of the Trustee
hereunder, and the liability of the Guarantors hereunder, shall not be affected
by any and all releases for any purpose of any collateral, if any, from the
Liens and security interests created by any collateral document and that this
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Indenture Obligations is rescinded or
must otherwise be returned by the Trustee upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment had not
been made.
Section 1410. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or instituted
under Article Fourteen and this Guarantee and no recovery or judgment in
pursuance thereof shall be a bar or defense to any further action or proceeding
which may be brought under Article Fourteen and this Guarantee by reason
114
of any further default or defaults under Article Fourteen and this Guarantee or
in the payment of any of the Indenture Obligations owing by the Company.
Section 1411. Failure to Exercise Rights Shall Not Operate as a Waiver; No
Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, power, privilege or remedy under this Article
Fourteen and this Guarantee shall operate as a waiver thereof, nor shall any
single or partial exercise of any rights, power, privilege or remedy preclude
any other or further exercise thereof, or the exercise of any other rights,
power, privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article Fourteen shall limit the right of the
Trustee, or the Holders to take any action to accelerate the maturity of the
Securities pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
Section 1412. Trustee's Duties; Notice to Trustee.
(a) Any provision in this Article Fourteen or elsewhere in this Indenture
allowing the Trustee to request any information or to take any action authorized
by, or on behalf of any Guarantor, shall be permissive and shall not be
obligatory on the Trustee except as the Holders may direct in accordance with
the provisions of this Indenture or where the failure of the Trustee to request
any such information or to take any such action arises from the Trustee's
negligence, bad faith or willful misconduct.
(b) The Trustee shall not be required to inquire into the existence, powers
or capacities of the Company, any Guarantor or the officers, directors or agents
acting or purporting to act on their respective behalf.
Section 1413. Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen shall extend
to and be binding upon each Guarantor and its successors and permitted assigns
and shall enure to the benefit of and may be enforced by the Trustee and its
successors and assigns; provided, however, that the Guarantors may not assign
any of their rights or obligations hereunder other than in accordance with
Article Eight.
Section 1414. Release of Guarantee; Limitation of Release of Guarantee.
(a) Notwithstanding anything in this Article Fourteen to the contrary,
concurrently with the payment in full of all of the Indenture Obligations, the
Guarantors shall be released from and relieved of their obligations under this
Article Fourteen. In addition, the Guarantee with respect to each Guarantor
shall be automatically and unconditionally released and discharged to the
extent, at such times and for such periods, as provided in Section 1018(d); and
in furtherance (but not in limitation) of the foregoing, each of the Company and
the Guarantors hereby acknowledges and agrees that in the event of any release
and discharge pursuant to Section 1018(d)(ii), such release and discharge shall
only be effective for so long as, and during such periods, that such released
and discharged Guarantor does not guarantee, or secure with a Lien on any of its
assets or properties, any Indebtedness of the Company or any other Restricted
Subsidiary (including in any manner described in Section 1018(a) or Section
1018(b)), and upon each occurrence of any such guarantee or security subsequent
to each such release and discharge pursuant to Section 1018(d)(ii), such
Guarantor's Guarantee shall be automatically revived and reinstated as if such
Guarantee had not been released and discharged and shall be in full force and
effect, without any further act by such Guarantor (although the Trustee may, at
its option, request, and if requested such Guarantor promptly shall comply with
any request, that such Guarantor shall enter
115
into an amendment to this Guarantee, reasonably satisfactory to the Trustee,
memorializing such revival and reinstatement, but the failure to request or
execute any such amendment shall not impair or delay the automatic effect of
such revived and reinstated Guarantee.
(b) Upon the delivery by the Company to the Trustee of an Officers'
Certificate and, if requested by the Trustee, an Opinion of Counsel to the
effect that the transaction giving rise to the release of this Guarantee was
made by the Company in accordance with the provisions of this Indenture and the
Securities, the Trustee shall execute any documents reasonably required in order
to evidence the release of the Guarantors from their obligations under this
Guarantee. If any of the Indenture Obligations are revived and reinstated after
the termination of this Guarantee, then all of the obligations of the Guarantors
under this Guarantee shall be revived and reinstated as if this Guarantee had
not been terminated until such time as the Indenture Obligations are paid in
full, and each Guarantor shall enter into an amendment to this Guarantee,
reasonably satisfactory to the Trustee, evidencing such revival and
reinstatement.
Section 1415. Execution of Guarantee: Additional Guarantors.
(a) To evidence the Guarantee, each Guarantor hereby agrees to execute the
guarantee substantially in the form set forth in Section 205, to be endorsed on
each Security authenticated and delivered by the Trustee and that this Indenture
shall be executed on behalf of each Guarantor by its Chairman of the Board, its
President, its Chief Executive Officer, Chief Operating Officer or one of its
Vice Presidents, attested by its Secretary or one of its Assistant Secretaries.
The signature of any of these officers on the Securities may be manual or
facsimile.
(b) Any Restricted Subsidiary (other than an Exempt Foreign Subsidiary),
whether now existing or hereafter formed or acquired, that was not a Guarantor
on the date of this Indenture and thereafter becomes a Significant Subsidiary,
or any Restricted Subsidiary, whether now existing or hereafter formed or
acquired, that was not a Guarantor on the date of this Indenture and thereafter
becomes a guarantor, obligor or grantor in respect of any other Indebtedness of
the Company or any other Restricted Subsidiary, or obligor on its Indebtedness,
in each case as provided in Section 1018, shall become, or any person that was
not a Guarantor on the date of this Indenture may become, a Guarantor by
executing and delivering to the Trustee (i) a supplemental indenture in form and
substance satisfactory to the Trustee, which subjects such person to the
provisions (including the representations and warranties) of this Indenture as a
Guarantor, (ii) if as of the date of such supplemental indenture any Registrable
Securities are outstanding, an instrument in form and substance satisfactory to
the Trustee which subjects such person to the provisions of the Registration
Rights Agreement with respect to such outstanding Registrable Securities, and
(iii) an Opinion of Counsel to the effect that such supplemental indenture has
been duly authorized and executed by such person and constitutes the legal,
valid and binding obligation of such person (subject to such customary
assumptions and exceptions as may be acceptable to the Trustee in its reasonable
discretion).
(c) If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Security on which this Guarantee
is endorsed, such Guarantee shall be valid nevertheless.
Section 1416. Guarantee Subordinate to Guarantor Senior Indebtedness.
Each Guarantor covenants and agrees, and each Holder of a Guarantee, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Guarantees is hereby expressly made subordinate and subject in right of
payment as provided in this Article to the prior payment in full of all
Guarantor Senior Indebtedness; provided, however, that the Indebtedness
represented by this Guarantee in all respects shall rank equally with, or prior
to, all existing and future Indebtedness of such Guarantor that is expressly
subordinated to such Guarantor's Guarantor Senior Indebtedness.
116
This Article Fourteen shall constitute a continuing offer to all persons
who, in reliance upon such provisions, become holders of, or continue to hold
Guarantor Senior Indebtedness; and such provisions are made for the benefit of
the holders of Guarantor Senior Indebtedness; and such holders are made obligees
hereunder and they or each of them may enforce such provisions.
Section 1417. Payment Over of Proceeds Upon Dissolution of the Guarantor,
etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to any Guarantor (or to its creditors, as such)
or to its assets, or (b) any liquidation, dissolution or other winding up of any
Guarantor, whether voluntary or involuntary, or whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets or liabilities of any Guarantor, then and in any
such event:
(1) the holders of Guarantor Senior Indebtedness shall be entitled to
receive payment in full of all amounts due on or in respect of all Guarantor
Senior Indebtedness before the Holders of the Securities are entitled to receive
any payment or distribution of any kind or character (excluding Securities of
any Guarantor as reorganized or readjusted or Securities of such Guarantor or
any other corporation provided for by a plan of reorganization or readjustment
the payment of which are subordinated in right of payment to all Guarantor
Senior Indebtedness that may be outstanding, at least to the same extent as, or
to a greater extent than, the Guarantees are so subordinated as provided in this
Article ("Permitted Guarantor Junior Securities")) on account of the Guarantee
of such Guarantor (other than amounts previously set aside with the Trustee, or
payments previously made, in either case, pursuant to the provisions of Sections
402 and 403 of this Indenture); and
(2) any payment or distribution of assets of any Guarantor of any kind or
character, whether in cash, property or securities (excluding Permitted
Guarantor Junior Securities), by set-off or otherwise, to which the Holders or
the Trustee would be entitled but for the provisions of this Article shall be
paid by the liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Guarantor Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Guarantor Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Guarantor Senior Indebtedness held or
represented by each to the extent necessary to make payment in full of all
Guarantor Senior Indebtedness remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Guarantor Senior
Indebtedness; and
(3) if, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security shall have received any payment or
distribution of assets of any Guarantor of any kind or character, whether in
cash, property or securities (excluding Permitted Guarantor Junior Securities),
in respect of the Guarantee of such Guarantor or on account of the purchase,
redemption, defeasance or other acquisition of, or in respect of, the Guarantee
of such Guarantor (other than amounts previously set aside with the Trustee, or
payments previously made, in either case pursuant to Sections 402 and 403 of
this Indenture) before all Guarantor Senior Indebtedness is paid in full, then
and in such event such payment or distribution (excluding Permitted Guarantor
Junior Securities) shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
person, making payments or distributions of assets of such Guarantor for
application to the payment of all Guarantor Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Guarantor Senior Indebtedness in full
after giving effect to any concurrent payment or distribution to or for the
holders of Guarantor Senior Indebtedness; and
117
(4) the Trustee shall execute and deliver to any Senior Representative all
such further instruments as shall be reasonably requested confirming the
subordination of the Guarantees pursuant to this Article Fourteen.
The consolidation of any Guarantor with, or the merger of any Guarantor
with or into, another person or the liquidation or dissolution of any Guarantor
following the sale, assignment, conveyance, transfer, lease or other disposal of
its properties and assets substantially as an entirety to another person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshaling of assets and liabilities of such Guarantor for the
purposes of this Section if the person formed by such consolidation or the
surviving entity of such merger or the person which acquires by sale,
assignment, conveyance, transfer, lease or other disposal of such properties and
assets substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, sale, assignment, conveyance, transfer, lease or
other disposal, agree to be bound by the subordination provisions contained in
Article Fourteen of this Indenture and each of the conditions set forth in
Section 801 (as in effect on the date hereof) shall have been satisfied in full.
Section 1418. Default on Guarantor Senior Indebtedness.
(a) Upon the maturity of any Guarantor Senior Indebtedness by lapse of
time, acceleration or otherwise, all principal thereof and interest thereon and
other amounts due in connection therewith shall first be paid in full or such
payment duly provided for before any payment is made by any of the Guarantors or
any person acting on behalf of any of the Guarantors in respect of the Guarantee
of such Guarantor.
(b) No payment or distribution of any assets of any Guarantor of any kind
or character (excluding Permitted Guarantor Junior Securities) shall be made by
any Guarantor in respect of its Guarantee during the period in which Section
1417 shall be applicable, during any suspension of payments in effect under
Section 1303(a) of this Indenture or during any Payment Blockage Period in
effect under Sections 1303(b) and (c) of this Indenture.
(c) If, notwithstanding the foregoing, any Guarantor shall make any payment
or distribution of any assets of any Guarantor of any kind or character
(excluding Permitted Guarantor Junior Securities) to the Trustee or the Holder
of its Guarantee prohibited by the foregoing provisions of this Section, then
and in such event such payment shall be held in trust for the holders of Senior
Indebtedness and paid over and delivered forthwith to the representatives of the
holders of the Guarantor Senior Indebtedness or as a court of competent
jurisdiction shall direct.
Section 1419. Payment Permitted by Each of the Guarantors if No Default.
Nothing contained in this Article, elsewhere in this Indenture or in any of
the Securities shall prevent any Guarantor, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding-up,
assignment for the benefit of creditors or other marshaling of assets and
liabilities of such Guarantor referred to in Section 1417 or under the
conditions described in Section 1418, from making payments at any time of
principal of, premium, if any, or interest on the Securities.
Section 1420. Subrogation to Rights of Holders of Guarantor Senior
Indebtedness.
After the payment in full of all Guarantor Senior Indebtedness, the Holders
of the Securities shall be subrogated to the rights of the holders of such
Guarantor Senior Indebtedness to receive payments and distributions of cash,
property and securities applicable to the Guarantor Senior Indebtedness until
the principal of, premium, if any, and interest on, the Securities shall be paid
in full. For purposes of such
118
subrogation, no payments or distributions to the holders of Guarantor Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article and no payments over pursuant to the provisions of this Article to the
holders of Guarantor Senior Indebtedness by Holders of the Securities or the
Trustee, shall, as among any Guarantor, its creditors other than holders of
Guarantor Senior Indebtedness, and the Holders of the Securities, be deemed to
be a payment or distribution by such Guarantor to or on account of the Guarantor
Senior Indebtedness.
Section 1421. Provisions Solely to Define Relative Rights.
The provisions of Sections 1416 through 1429 of this Indenture are intended
solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Guarantor Senior Indebtedness on
the other hand. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall (a) impair, as among any
Guarantor, its creditors other than holders of Guarantor Senior Indebtedness and
the Holders of the Securities, the obligation of such Guarantor, which is
absolute and unconditional, to pay to the Holders of the Securities the
principal of, premium, if any, and interest on, the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against each of the Guarantors of the Holders of the
Securities and creditors of each of the Guarantors other than the holders of
Guarantor Senior Indebtedness; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Guarantor Senior Indebtedness (1) in any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshaling of assets and liabilities of the Guarantors
referred to in Section 1417, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section 1418,
to prevent any payment prohibited by such Section or enforce their rights
pursuant to Section 1418(c).
Section 1422. Trustee to Effectuate Subordination.
Each Holder of a Security by such Holder's acceptance thereof authorizes
and directs the Trustee on such Holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee such Holder's attorney-in-fact for any and all
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of any Guarantor whether in bankruptcy,
insolvency, receivership proceedings, or otherwise, the timely filing of a claim
for the unpaid balance of the indebtedness of any Guarantor owing to such Holder
in the form required in such proceedings and the causing of such claim to be
approved.
Section 1423. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
any Guarantor or by any act or failure to act, in good faith, by any such holder
or any Senior Representative, or by any non-compliance by any Guarantor with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this Section 1423,
the holders of Guarantor Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Guarantor Senior Indebtedness, do any one or more of the following: (1) change
the manner, place or terms of payment or extend the time of
119
payment of, or renew or alter, Guarantor Senior Indebtedness or any instrument
evidencing the same or any agreement under which Guarantor Senior Indebtedness
is outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Guarantor Senior Indebtedness; (3)
release any person liable in any manner for the collection or payment of
Guarantor Senior Indebtedness; (4) exercise or refrain from exercising any
rights against any of the Guarantors and any other person; and (5) sell, assign
or transfer the Guarantor Senior Indebtedness to any person; provided, however,
that in no event shall any such actions limit the right of the Holders of the
Securities to take any action to accelerate the maturity of the Securities
pursuant to Article Five of this Indenture or to pursue any rights or remedies
hereunder or under applicable laws if the taking of such action does not
otherwise violate the terms of this Article.
Section 1424. Notice to Trustee by Each of the Guarantors.
(a) Each Guarantor shall give prompt written notice to the Trustee of any
fact known to such Guarantor which would prohibit the making of any payment to
or by the Trustee in respect of the Guarantee. Notwithstanding the provisions
of this Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from any
Guarantor or a holder of Guarantor Senior Indebtedness or any trustee, fiduciary
or agent therefor; and, prior to the receipt of any such written notice, the
Trustee shall be entitled in all respects to assume that no such facts exist;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section by Noon, Eastern Time, on the Business Day prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on any Security), then, anything herein contained
to the contrary notwithstanding but without limiting the rights and remedies of
the holders of Guarantor Senior Indebtedness or any trustee, fiduciary or agent
thereof, the Trustee shall have full power and authority to receive such money
and to apply the same to the purpose for which such money was received and shall
not be affected by any notice to the contrary which may be received by it after
such date; nor shall the Trustee be charged with knowledge of the curing of any
such default or the elimination of the act or condition preventing any such
payment unless and until the Trustee shall have received an Officers'
Certificate to such effect.
(b) The Trustee shall be entitled to rely on the delivery to it of a
written notice to the Trustee and each Guarantor by a person which represents
itself as a representative of one or more holders of Guarantor Senior or a
holder of Guarantor Senior Indebtedness (or a trustee, fiduciary or agent
therefor) to establish that such notice has been given by a representative of or
a holder of Guarantor Senior Indebtedness (or a trustee, fiduciary or agent
therefor); provided, however, that failure to give such notice to the Company or
any Guarantor shall not affect in any way the ability of the Trustee to rely on
such notice. If the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Guarantor Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Guarantor Senior
Indebtedness held by such person, the extent to which such person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such person under this Article, and if such evidence is not furnished,
the Trustee may defer any payment to such person pending judicial determination
as to the right of such person to receive such payment.
Section 1425. Reliance on Judicial Orders or Certificates.
Upon any payment or distribution of assets of any Guarantor referred to in
this Article, the Trustee and the Holders of the securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the
120
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Guarantor Senior Indebtedness and other
indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article, provided that the foregoing shall apply only if such
court has been fully apprised of the provisions of this Article.
Section 1426. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Guarantor Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Guarantor Senior Indebtedness, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder. Nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section
607.
Section 1427. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting under this Indenture, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1426 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
Section 1428. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee or
the Holders of Securities to take any action to accelerate the maturity of the
Securities pursuant to Article Five of this Indenture or to pursue any rights or
remedies hereunder or under applicable law, subject to the rights, if any, under
this Article of the holders, from time to time, of Guarantor Senior Indebtedness
to receive the cash, property or securities receivable from any Guarantor upon
the exercise of such rights or remedies.
Section 1429. Trustee's Relation to Guarantor Senior Indebtedness.
With respect to the holders of Guarantor Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Guarantor Senior Indebtedness shall
be read into this Article against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of Guarantor Senior Indebtedness and
the Trustee shall not be liable to any holder of Guarantor Senior Indebtedness
if it shall in good faith mistakenly (absent negligence or willful misconduct)
pay over or deliver to Holders, the Company or any other person moneys or assets
to which any holder of Guarantor Senior Indebtedness shall be entitled by virtue
of this Article or otherwise.
* * *
121
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
NEWPARK RESOURCES, INC.
Attest: /s/ XXXX XXXXXXX By /s/ XXXXX X. XXXX
------------------------ -------------------------------------
Name: Xxxx Xxxxxxx Xxxxx X. Xxxx, Chairman of the Board,
---------------------- President and Chief Executive Officer
Title: Secretary
---------------------
SOLOCO, L.L.C.
NEWPARK ENVIRONMENTAL
MANAGEMENT COMPANY, L.L.C.
NEWPARK DRILLING FLUIDS, INC.
SUPREME CONTRACTORS, INC.
EXCALIBAR MINERALS, INC.
EXCALIBAR MINERALS OF LA., L.L.C.
CHEMICAL TECHNOLOGIES, INC.
NEWPARK ENVIRONMENTAL SERVICES, INC.
XXXXXXX CONSTRUCTION COMPANY, INC.
MALLARD & MALLARD OF LA., INC.
Attest: /s/ XXXX XXXXXXX By /s/ XXXXX X. XXXX
------------------------ -------------------------------------
Name: Xxxx Xxxxxxx Xxxxx X. Xxxx
---------------------- Chairman of the Board
Title: Secretary
---------------------
SOLOCO TEXAS, X.X.
XXXXXX-MILL, L.P.
NEWPARK ENVIRONMENTAL SERVICES
OF TEXAS L.P.
NEWPARK TEXAS DRILLING FLUIDS, L.P.
NES PERMIAN BASIN, L.P.
NID, L.P.
NEWPARK ENVIRONMENTAL SERVICES
MISSISSIPPI, L.P.
NEWPARK SHIPHOLDING TEXAS, L.P.
By: Newpark Holdings, Inc.,
Its General Partner
Attest: /s/ XXXX XXXXXXX By /s/ XXXXX X. XXXX
------------------------ -------------------------------------
Name: Xxxx Xxxxxxx Xxxxx X. Xxxx
---------------------- Chairman of the Board
Title: Secretary
---------------------
000
XXXXXXX XXXXX, L.L.C.
NEWPARK HOLDINGS, INC.
Attest: /s/ XXXX XXXXXXX By /s/ XXXXX X. XXXX
------------------------ -------------------------------------
Name: Xxxx Xxxxxxx Xxxxx X. Xxxx
---------------------- Chairman of the Board
Title: Secretary
---------------------
STATE STREET BANK AND TRUST COMPANY, as Trustee
Attest: /s/ XXXXX X. XXXXXX By /s/ XXXXXX XXXXXX
------------------------ -------------------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxxx
--------------------- -------------------------
Title: Vice President Title: Assistant Vice President
--------------------- -------------------------
123
SCHEDULE 1008
EXISTING INDEBTEDNESS
Newpark Resources, Inc.
Consolidated Debt Schedule
As of December 10, 1997
(Thousands of Dollars)
Long-term debt
-----------------
Inte- Mon- Cur- Long-
Date Matu- Orig- rest thly Notes rent term
Of rity inal Rate Pay- Pay- Por- Por-
Operation Payable Type of Loan Note Date Amount (%) ments able tion tion Total
------------------------------------------------------------------------------------------------------------------------------------
Soloco-LA Bank One Leasing - 2 Cat Wheel loaders Secured - Equipment 8/93 6/98 142 8.7 3 17 0 17
Bank One Leasing - 13 Xxxx Trucks Secured - Equipment 8/93 6/98 827 8.7 17 101 0 101
Bank One Leasing - Kalyn Trailr. &
Utility Trailers (2) Secured - Equipment 9/93 8/98 73 8.7 2 12 0 12
Bank One Leasing - Kobelco Excavator Secured - Equipment 5/94 4/99 124 8.7 3 29 10 39
Bank One Leasing - JD 450G Dozer Secured - Equipment 7/94 6/99 74 9.4 2 17 11 28
Bank One Leasing - JD 550G Dozer Secured - Equipment 8/94 7/98 73 9.34 2 13 0 13
Bank One Leasing - 2 Xxxxxx Dump Trailers Secured - Equipment 4/95 3/99 47 9.9 1 13 4 17
Bank One Leasing - JD 690ELC Excavator Secured - Equipment 4/95 3/99 159 9.9 4 45 12 57
Hibernia - Town Center Building 7/96 8/06 920 9.06 24 67 774 841
G.E. Capital - Sch. #1 & #5 Secured - Equipment 1/96 12/98 351 9.43 11 128 0 128
KDC Financial - Komatsu LFExcav A080276 Secured - Equipment 12/96 1/01 181 7.075 4 47 97 144
------------------------
0 489 908 1,397
Supreme MBS - Land & Xxxx. 0/00 1/00 255 8.5 4 38 46 84
For Motor Credit - '97 Ford F350 Precab 4/97 4/00 24 10.27 1 8 11 19
LA Machinery - '97 Caterpillar Tool Carrier 4/97 4/00 78 8.9 2 25 38 63
Xerox - Copy Machine 4/96 10/99 14 15.22 0.5 4 4 8
Xxxxx Xxxxxxx - buyout 4/97 4/98 125 0 0 100 0 100
------------------------
175 99 274
Xxxxxxx KDC - Komatsu Excavator 2/97 1/99 135 4.99 6 69 6 75
Soloco-TX Bank One Leasing - Case Backhoe Secured - Equipment 4/95 3/99 40 9.9 1 11 3 14
KD Financial - Komatsu Wheel loader Secured - Equipment 1/97 1/99 83 4.99 42 4 46
------------------------
0 53 7 60
--------------------------------------------------------------------------------------------------------------------------
Subtotal: Soloco 0 786 1,020 1,806
--------------------------------------------------------------------------------------------------------------------------
XXXX Xxxxxx Corporation Secured - Equipment 4/94 4/99 25 13.48 *1 6 3 9
Bank One Leasing #15335 Secured - Equipment 11/94 10/98 157 9.98 4 42 0 42
Bank One Leasing #15345 Secured - Equipment 2/95 1/00 217 10.3 5 47 61 108
Bank One Leasing #15359 Secured - Equipment 4/95 3/99 65 9.9 2 16 8 24
Case Credit Corp. Secured - Equipment 11/95 10/98 42 7.9 1 13 0 13
Hibernia - Town Center Building 7/96 8/06 920 9.06 24 61 781 842
KDC Financial 10/97 11/98 122 2.5 10 112 112
--------------------------------------------------------------------------------------------------------------------------
Subtotal: NES 112 185 853 1,150
--------------------------------------------------------------------------------------------------------------------------
NDF Nationsbank Auto - PU 1479 3/96 3/01 19 9.0 *1 4 9 13
Xxxxxxx 33 33
Nationsbank Auto 9.8 *1 3 8 11
--------------------------------------------------------------------------------------------------------------------------
Subtotal: NDF 33 7 17 57
--------------------------------------------------------------------------------------------------------------------------
Xxxxxx Bank One Leasing Secured - Equipment 5/94 5/99 249 8.4 5 52 25 77
--------------------------------------------------------------------------------------------------------------------------
Subtotal: Xxxxxx 0 52 25 77
--------------------------------------------------------------------------------------------------------------------------
Subtotal: Before Corporate 145 1,030 1,915 3,090
--------------------------------------------------------------------------------------------------------------------------
Corporate Bank One - Revolving Lines Line of credit 6/97 6/00 N/A Libor/Prime Interest 0 90,459 90,459
Xxxxxx Financial-Newpark Shipbuilding Guaranty 8/96 10,000 n/a n/a 10,000
Bank One - Reimbursement Note - Loma Guaranty 5/97 7,592 n/a n/a 7,592
--------------------------------------------------------------------------------------------------------------------------
Subtotal: Corporate 0 90,459 108,051
--------------------------------------------------------------------------------------------------------------------------
Total: Newpark Resources, Inc. 145 1,030 92,374 111,141
==========================================================================================================================
* Less Than
SCHEDULE 1015
DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES
NONE
Exhibit B
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Rule 144(k)
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporation Trust Department
Re: Newpark Resources, Inc. (the "Company")
8 5/8% Senior Subordinated Notes due 2007 Series A
(the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_________ aggregate principal
amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Rule 144(k) under the Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent
that:
(1) a period of at least two years has elapsed since the latest of
the date (a) the Securities were acquired from the Company or from an
Affiliate (as defined in Rule 144 under the Securities Act) of the Company
or (b) the full purchase price of the Securities had been paid; and
(2) the undersigned is not and has not been during the preceding
three months an Affiliate (as defined in Rule 144 under the Securities
Act) of the Company.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in the Indenture dated December 17, 1997, among the Company,
the Guarantors named therein and State Street Bank and Trust Company as trustee.
Very truly yours,
[Name of Transferor]
By:
-------------------------------
Authorized Signature
Exhibit C
Form of Certificate to Be Delivered
in Connection with Transfers
Pursuant to Regulation S
State Street Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Corporation Trust Department
Re: Newpark Resources, Inc. (the "Company")
8 5/8% Senior Subordinated Notes due 2007 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $_____________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the Securities Act of 1933, as
amended, and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933, as amended.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are applicable
thereto, we confirm that such sale has been made in accordance with the
applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor
By:
------------------------------
Authorized Signature
APPENDIX I
[FORM OF TRANSFEREE CERTIFICATE FOR SERIES A SECURITIES]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s)
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________
___________________________________________________
___________________________________________________
(Please print or typewrite name and address including zip code of assignee)
___________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
___________________________________________________
attorney to transfer such Security on the books of the Company with full power
of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL CERTIFICATES
FOR SERIES A SECURITIES EXCEPT PERMANENT OFFSHORE PHYSICAL
CERTIFICATES]
In connection with any transfer of this Security occurring prior to the
date which is the earlier of the date of an effective Registration Statement or
December 17, 1999, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933, as amended, provided
by Rule 144A thereunder.
or
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the conditions
of transfer set forth in this Security and the Indenture.
If none of the foregoing boxes is checked, the Trustee or other Security
Registrar shall not be obligated to register this Security in the name of any
person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 307 of the Indenture
shall have been satisfied.
Date:
--------------------
-------------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of the
within-mentioned instrument in every particular, without
alteration or any change whatsoever.
Signature Guarantee:
--------------------------------------
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15]
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_______________ _________________________________________________
NOTICE: To be executed by an authorized signatory
AI-2
APPENDIX II
[FORM OF TRANSFEREE CERTIFICATE FOR SERIES B SECURITIES]
I or we assign and transfer this Security to:
Please insert social security or other identifying number of assignee
Print or type name, address and zip code of assignee and irrevocably appoint
-------------------------------------------
[Agent], to transfer this Security on the books of the Company. The Agent may
substitute another to act for him.
Dated: __________________________ Signed ___________________________
(Sign exactly as name appears on the other side of this Security)
[Signature must be guaranteed by an eligible Guarantor Institution (banks, stock
brokers, savings and loan associations and credit unions) with membership in an
approved guarantee medallion program pursuant to Securities and Exchange
Commission Rule 17 Ad-15]
