KLN&F Draft
November 26, 2002
Exhibit T3C
STERLING CHEMICALS, INC.
as Issuer
STERLING CHEMICALS ENERGY, INC.,
as Guarantor
10% SENIOR SECURED NOTES DUE 200[7]
INDENTURE
Dated as of _________ __, 200[2]
_________________________________
NATIONAL CITY BANK, a National Banking Association,
as Trustee
_________________________________
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
--------------- -----------------
310(a)(1)............................................................................... 7.10
(a)(2).................................................................................. 7.10
(a)(3).................................................................................. N.A.
(a)(4).................................................................................. N.A.
(a)(5).................................................................................. 7.10
(b)..................................................................................... 7.10
(c)..................................................................................... N.A.
311(a).................................................................................. 7.11
(b)..................................................................................... 7.11
(c)..................................................................................... N.A.
312(a).................................................................................. 2.05
(b)..................................................................................... 12.03
(c)..................................................................................... 12.03
313(a).................................................................................. 7.06
(b)(1).................................................................................. 10.03
(b)(2).................................................................................. 7.07
(c)..................................................................................... 7.06; 12.02
(d)..................................................................................... 7.06
314(a).................................................................................. 4.03; 12.02
(b)..................................................................................... 10.02
(c)(1).................................................................................. N.A
(c)(2).................................................................................. N.A.
(c)(3).................................................................................. N.A.
(d)..................................................................................... 10.03, 10.04, 10.05
(e)..................................................................................... 12.05
(f)..................................................................................... N.A.
315(a).................................................................................. N.A.
(b)..................................................................................... N.A.
(c)..................................................................................... N.A.
(d)..................................................................................... N.A.
(e)..................................................................................... N.A.
316(a) (last sentence).................................................................. N.A.
(a)(1)(A)............................................................................... N.A.
(a)(1)(B)............................................................................... N.A.
(a)(2).................................................................................. N.A.
(b)..................................................................................... N.A.
(c)..................................................................................... N.A. 317(a)(1)
N.A.
(a)(2).................................................................................. N.A.
(b)..................................................................................... N.A.
318(a).................................................................................. N.A.
(b)..................................................................................... N.A.
(c)..................................................................................... 12.01
N.A. means not applicable.
* This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................................................1
Section 1.01. Definitions.................................................................................1
Section 1.02. Other Definitions..........................................................................20
Section 1.03. Incorporation by Reference of Trust Indenture Act..........................................20
Section 1.04. Rules of Construction......................................................................21
ARTICLE 2 THE NOTES..................................................................................21
Section 2.01. Form and Dating............................................................................21
Section 2.02. Execution and Authentication...............................................................22
Section 2.03. Registrar and Paying Agent.................................................................23
Section 2.04. Paying Agent to Hold Money in Trust........................................................23
Section 2.05. Lists......................................................................................23
Section 2.06. Transfer and Exchange......................................................................23
Section 2.07. Replacement Notes..........................................................................26
Section 2.08. Outstanding Notes..........................................................................27
Section 2.09. Treasury Notes.............................................................................27
Section 2.10. Temporary Notes............................................................................27
Section 2.11. Cancellation...............................................................................28
Section 2.12. Defaulted Interest.........................................................................28
Section 2.13. Exemption From Federal and State Law Securities Registration Requirements..................28
ARTICLE 3 REDEMPTION AND PREPAYMENT..................................................................28
Section 3.01. Notices to Trustee.........................................................................28
Section 3.02. Selection of Notes to Be Redeemed..........................................................28
Section 3.03. Notice of Redemption.......................................................................29
Section 3.04. Effect of Notice of Redemption.............................................................30
Section 3.05. Deposit of Redemption Price................................................................30
Section 3.06. Notes Redeemed in Part.....................................................................30
Section 3.07. Optional Redemption........................................................................30
Section 3.08. Mandatory Redemption.......................................................................31
Section 3.09. Offer to Purchase by Application of Net Available Cash.....................................31
ARTICLE 4 COVENANTS..................................................................................33
Section 4.01. Payment of Notes...........................................................................33
Section 4.02. Maintenance of Office or Agency............................................................34
Section 4.03. Reports....................................................................................34
Section 4.04. Compliance Certificate.....................................................................35
Section 4.05. Taxes......................................................................................35
Section 4.06. Stay, Extension and Usury Laws.............................................................35
Section 4.07. Limitation on Dividends....................................................................36
Section 4.08. Limitation on Restricted Payments..........................................................36
Section 4.09. Limitation on Restrictions on Distributions from Subsidiaries..............................37
Section 4.10. Limitation on Debt.........................................................................38
Section 4.11. Asset Sales................................................................................39
Section 4.12. Limitation on Transactions with Affiliates.................................................40
Section 4.13. Liens......................................................................................41
Section 4.14. Corporate Existence........................................................................41
Section 4.15. Offer to Repurchase Upon Change of Control.................................................41
Section 4.16. Sale of the Texas City Facilities..........................................................43
Section 4.17. Limitation on the Sale or Issuance of Capital Stock of Subsidiaries........................43
Section 4.18. INTENTIONALLY OMITTED......................................................................44
Section 4.19. Additional Subsidiaries....................................................................44
Section 4.20. Capital Expenditures.......................................................................44
ARTICLE 5 SUCCESSORS.................................................................................44
Section 5.01. Xxxxxx, Consolidation or Sale of Assets....................................................44
Section 5.02. Successor Corporation Substituted..........................................................45
ARTICLE 6 DEFAULTS AND REMEDIES......................................................................45
Section 6.01. Events of Default..........................................................................45
Section 6.02. Acceleration...............................................................................47
Section 6.03. Other Remedies.............................................................................48
Section 6.04. Waiver of Past Defaults....................................................................48
Section 6.05. Control by Majority........................................................................48
Section 6.06. Limitation on Suits........................................................................48
Section 6.07. Rights of Holders of Notes to Receive Payment..............................................49
Section 6.08. Collection Suit by Trustee.................................................................49
Section 6.09. Trustee May File Proofs of Claim...........................................................49
Section 6.10. Priorities.................................................................................50
Section 6.11. Undertaking for Costs......................................................................50
ARTICLE 7 TRUSTEE....................................................................................51
Section 7.01. Duties of Trustee..........................................................................51
Section 7.02. Rights of Trustee..........................................................................52
Section 7.03. Individual Rights of Trustee...............................................................52
Section 7.04. Trustee's Disclaimer.......................................................................52
Section 7.05. Notice of Defaults.........................................................................53
Section 7.06. Reports by Trustee to Holders of the Notes.................................................53
Section 7.07. Compensation and Indemnity.................................................................53
Section 7.08. Replacement of Trustee.....................................................................54
Section 7.09. Successor Trustee by Xxxxxx, etc...........................................................55
Section 7.10. Eligibility; Disqualification..............................................................55
Section 7.11. Preferential Collection of Claims Against Company..........................................55
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE...................................................56
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance...................................56
Section 8.02. Legal Defeasance and Discharge.............................................................56
Section 8.03. Covenant Defeasance........................................................................56
Section 8.04. Conditions to Legal or Covenant Defeasance.................................................57
Section 8.05. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions...........................................................58
Section 8.06. Repayment to Company.......................................................................59
Section 8.07. Reinstatement..............................................................................59
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER...........................................................59
Section 9.01. Without Consent of Holders of Notes........................................................59
Section 9.02. With Consent of Holders of Notes...........................................................60
Section 9.03. Compliance with Trust Indenture Act........................................................62
Section 9.04. Revocation and Effect of Consents..........................................................62
Section 9.05. Notation on or Exchange of Notes...........................................................62
Section 9.06. Trustee to Sign Amendments, etc............................................................62
ARTICLE 10 COLLATERAL AND SECURITY....................................................................63
Section 10.01. Security Documents.........................................................................63
Section 10.02. Recording and Opinions.....................................................................63
Section 10.03. Release of Pledged Collateral..............................................................64
Section 10.04. Certificates of the Company................................................................65
Section 10.05. Certificates of the Trustee................................................................65
Section 10.06. Attornment.................................................................................65
Section 10.07. Authorization of Actions to Be Taken by the Trustee Under the Security Documents...........66
Section 10.08. Authorization of Receipt of Funds by the Trustee Under the Security Documents..............66
Section 10.09. Termination of Security Interest...........................................................66
ARTICLE 11 SUBSIDIARY GUARANTEES......................................................................66
Section 11.01. Subsidiary Guarantees......................................................................66
Section 11.02. Limitation on Subsidiary Guarantor Liability...............................................68
Section 11.03. Execution and Delivery of Subsidiary Guarantee.............................................69
Section 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms..............................69
Section 11.05. Releases Following Sale of Assets..........................................................70
ARTICLE 12 HOLDERS' MEETINGS..........................................................................71
Section 12.01. Purposes of Meetings.......................................................................71
Section 12.02. Place of Meetings..........................................................................71
Section 12.03. Call and Notice of Meetings................................................................71
Section 12.04. Action Without Meeting.....................................................................72
Section 12.05. Voting at Meetings.........................................................................72
Section 12.06. Voting Rights, Conduct and Adjournment.....................................................72
Section 12.07. Revocation of Consent by the Holders.......................................................73
Section 12.08. No Delay of Rights by Meeting..............................................................73
ARTICLE 13 MISCELLANEOUS..............................................................................73
Section 13.01. Trust Indenture Act Controls...............................................................73
Section 13.02. Notices....................................................................................73
Section 13.03. Communication by Holders of Notes with Other Holders of Notes..............................75
Section 13.04. Certificate and Opinion as to Conditions Precedent.........................................75
Section 13.05. Statements Required in Certificate or Opinion..............................................75
Section 13.06. Rules by Trustee and Agents................................................................75
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders...................76
Section 13.08. Governing Law..............................................................................76
Section 13.09. No Adverse Interpretation of Other Agreements..............................................76
Section 13.10. Successors.................................................................................76
Section 13.11. Severability...............................................................................76
Section 13.12. Counterpart Originals......................................................................76
Section 13.13. Table of Contents, Headings, etc...........................................................77
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF NOTATION OF GUARANTEE
INDENTURE, dated as of _____________ __, 200[2] among Sterling
Chemicals, Inc., a Delaware corporation, Sterling Chemicals Energy, Inc., a
Delaware corporation and National City Bank, as trustee.
The Company (as defined below), the Subsidiary Guarantors (as defined
below) and the Trustee (as defined below) agree as follows for the benefit of
each other and for the equal and ratable benefit of the Holders of the 10%
Senior Secured Notes due 200[7] (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
-----------
"Additional Notes" means Notes issued in payment of interest on Notes
pursuant to Section 4.01 hereof.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any 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 the provisions of Section 4.12 only, "Affiliate"
shall also mean any beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) of Capital Stock representing 10% or more of the total
voting power of the Voting Stock (on a fully diluted basis) of the Company and
any Person who would be an Affiliate of any such beneficial owner pursuant to
the first sentence hereof.
"Agent" means the Registrar or the Paying Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or dispositions) of
shares of Capital Stock of a Subsidiary (other than directors' qualifying
shares), property or other assets (each referred to for the purposes of this
definition as a "disposition") by the Company or any of its Subsidiaries,
including any disposition by means of a merger, consolidation or similar
transaction, for gross proceeds in excess of $2.0 million, other than:
(1) a disposition by a Subsidiary to the Company or by the Company or
a Subsidiary to a Wholly Owned Subsidiary,
(2) a disposition of property or assets (other than shares of Capital
Stock of a Subsidiary and property or assets which constitute all or
substantially all of the assets of any division or line of business of the
Company or any Subsidiary) at fair market value in the ordinary course of
business including sales of inventory,
(3) for purposes of the provisions of Section 4.11 only, a
disposition that constitutes a Restricted Payment permitted or a Permitted
Investment not prohibited by the provisions of Section 4.08,
(4) the disposition of all or substantially all of the assets of the
Company permitted by the provisions of Section 5.01,
(5) the disposition of assets in exchange for other assets that
satisfies the requirements set forth in clause (2)(A) of Section 4.11,
(6) the disposition of the Fibers Assets; and
(7) a Sale of the Texas City Facilities.
"Attributable Debt" in respect of a Sale/Leaseback Transaction means,
as at the time of determination, the present value (discounted at the interest
rate borne by the Notes for interest payments made in cash compounded
annually) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale/Leaseback Transaction
(including any period for which such lease has been extended).
"Authentication Order" shall have the meaning set forth in Section
2.02.
"Average Life" means, as of the date of determination, with respect
to any Debt or Preferred Stock, the quotient obtained by dividing:
(1) the sum of the products of numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Debt or redemption or similar payment with respect to such Preferred
Stock multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Bankruptcy Law" means the Bankruptcy Code, or any similar federal or
state law for the relief of debtors.
"Benefited Party" shall have the meaning set forth in Section 11.01.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Borrowers" means collectively, the Company and the Subsidiary
Guarantors.
"Business Day" means each day which is not a Legal Holiday.
"Capital Expenditures" means, for any period, all amounts which
would, in accordance with GAAP, be set forth as capital expenditures
(exclusive of any amount attributable to capitalized interest) on the
consolidated statement of cash flows or other similar statement of the Company
and its Subsidiaries for such period.
"Capital Lease Obligations" of a Person means any obligation which is
required to be classified and accounted for as a capital lease on the face of
a balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligation shall be the capitalized amount thereof, determined in
accordance with GAAP and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without
payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options or participations (or other equivalents
thereof) in such Person (however designated), including any Preferred Stock,
but excluding any debt securities convertible into or exchangeable for such
equity.
"Change of Control" means:
(1) Any "Person" (as that term is used in Sections 13(d) and 14(d) of
the Exchange Act), other than one or more of the Permitted Holders, is or
becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act except that a Person will be deemed to have "beneficial
ownership" of all shares that any such Person has the 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 Voting Stock of the Company; provided, however, that the Permitted Holders
"beneficially own," as defined above, directly or indirectly, in the aggregate
a lesser percentage of the total voting power of the Voting Stock of the
Company than such other Person and do not have the right or ability by voting
power, contract or otherwise to elect or designate for election a majority of
the Board of Directors of the Company. For the purposes of this clause (1):
(a) such other Person will be deemed to beneficially own any Voting
Stock of a corporation (the "specified corporation") held by any
other corporation (the "parent corporation"), if such other Person
"beneficially owns" (as defined above), directly or indirectly, more
than 50% of the voting power of the Voting Stock of such parent
corporation and the Permitted Holders "beneficially own" (as defined
above), directly or indirectly, in the aggregate a lesser percentage
of the voting power of the Voting Stock of such parent corporation
and do not have the right or ability by voting power, contract or
otherwise to elect or designate for election a majority of the Board
of Directors of such parent corporation; and
(b) the Permitted Holders will be deemed to beneficially own any
Voting Stock of a specified corporation held by any parent
corporation so long as the Permitted Holders beneficially own (as so
defined), directly or indirectly, in the aggregate a majority of the
voting power of the Voting Stock of the parent corporation.
(2) During any period of two consecutive years, 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 shareholders of the Company was approved
by a majority of the directors of the Company then still in office who were
either directors at the beginning of such period or whose election or
nomination for election was previously so approved), cease for any reason to
constitute a majority of the Board of Directors of the Company then in office.
(3) The merger or consolidation of the Company with or into another
Person or the merger of another Person (other than a Permitted Holder) with or
into the Company, or the sale or transfer in one or a series of transactions
of all or substantially all of the assets of the Company to another Person
(other than a Permitted Holder) and, in the case only of any such merger or
consolidation, the securities of the Company that are outstanding immediately
prior to such transaction and which represent 100% of the aggregate voting
power of the Voting Stock of the Company are changed into or exchanged for
cash, securities or property, unless pursuant to such transaction such
securities are changed into or exchanged for, in addition to any other
consideration, securities of the surviving corporation that represent,
immediately after such transaction, at least a majority of the aggregate
voting power of the Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agent" means National City Bank, in its capacity as
collateral agent under the Security Agreement, or any successor thereto.
"Commission" means the Securities and Exchange Commission or any
successor agency that administers the Exchange Act.
"Commodity Agreement" means any commodity future contract, commodity
option or other similar agreement or arrangement (limited in amount to
underlying exposure, and not for speculative purposes) entered into by the
Company or any Subsidiary that is designed to protect the Company or a
Subsidiary against fluctuations in the price of commodities used by the
Company or a Subsidiary as raw materials in the ordinary course of business.
"Company" means Sterling Chemicals, Inc., and any and all successors
thereto.
"Company Budget" means a budget of the Company prepared in good faith
by the management of the Company prior to an Interest Payment Date showing in
reasonable detail the estimated cash receipts and cash disbursements of the
Company and its Subsidiaries on a monthly basis for each calendar month during
the six months commencing on the first day of the calendar month in which such
Interest Payment Date occurs, which budget is approved by the board of
directors of the Company.
"Consolidated Net Worth" of any Person means the total of the amounts
shown on the balance sheet of such Person and its consolidated subsidiaries,
determined on a consolidated basis in accordance with GAAP, as of the end of
the most recent fiscal quarter of such Person ending at least 45 days, or such
shorter period as is required by the Commission for filings of quarterly
reports on Form 10Q, prior to the taking of any action for the purpose of
which the determination is being made, as
(1) the par or stated value of all outstanding Capital Stock of such
Person, plus
(2) paid-in capital or capital surplus relating to such Capital Stock,
plus
(3) any retained earnings or earned surplus,
less:
(1) any accumulated deficit,
(2) any amounts attributable to Redeemable Stock, and
(3) any amounts attributable to Exchangeable Stock.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 13.02 hereof or such other address as to
which the Trustee may give notice to the Company.
"Credit Agreement" means a revolving credit facility with a
commercial bank or other financial institution (as amended, supplemented and
restated or otherwise modified from time to time) among the Company and/or any
of its Subsidiaries as borrowers thereunder, and any other lenders party
thereto, pursuant to which the Company and/or its Subsidiaries, or any of them
may borrow, repay and reborrow money and which borrowings and other
obligations arising with respect to such Credit Agreement and any other
documents executed and delivered in connection therewith may be secured by
Liens on any assets or properties of the Company and its Subsidiaries other
than the Pledged Collateral.
"Credit Agreement Collateral" means any and all assets of the Company
and its Subsidiaries defined as "Collateral" in the Credit Agreement Security
Documents but shall in no event include any of the Pledged Collateral.
"Credit Agreement Security Documents" means any security or pledge
agreement or mortgage or collateral assignment entered into by the Company or
its Subsidiaries as required under the Credit Agreement.
"Currency Agreement" means with respect to any Person, any foreign
exchange contract, currency swap agreement or other similar agreement (limited
in amount to underlying exposure, and not for speculative purposes) to which
such Person is a party or a beneficiary.
"Custodian" means the Trustee, as custodian with respect to the
Global Notes, or any successor entity thereto. "Debt" of any Person means,
without duplication:
(1) the principal of and premium (if any) in respect of
(a) indebtedness of such Person for money borrowed and
(b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments the payment of which such Person is responsible
or liable,
(2) all Capital Lease Obligations of such Person and all Attributable
Debt in respect of Sale/Leaseback Transactions entered into by such
Person,
(3) all obligations of such Person Incurred as the deferred purchase
price of property, all conditional sale obligations of such Person
and all obligations of such Person under any title retention
agreement (but excluding trade accounts payable arising in the
ordinary course of business),
(4) all obligations of such Person for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar
credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (1)
through (3) above) entered into in the ordinary course of business of
such Person to the extent such letters of credit are not drawn upon
or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third Business Day following receipt by such Person of
a demand for reimbursement following payment on the letter of
credit),
(5) all Redeemable Stock of such Person and, with respect to any
Subsidiary of such Person, all Preferred Stock other than pay-in-kind
dividends in the form of Preferred Stock (the amount of Debt
represented thereby shall equal the greater of its liquidation
preference and the redemption, repayment or other repurchase
obligations with respect thereto, not excluding any accrued
dividends),
(6) all Hedging Obligations of such Person,
(7) all obligations of the type referred to in clauses (1) through
(4) of other Persons and all dividends of other Persons the payment
of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including
by means of any Guarantee, and
(8) all obligations of the type referred to in clauses (1) through
(6) of other Persons secured by any Lien on any property or asset of
such Person (whether or not such obligation is assumed by such
Person), the amount of such obligation being deemed to be the lesser
of the value of such property or assets or the amount of the
obligation so secured.
The amount of Debt of any Person at any date shall be the outstanding
balance on such date of all unconditional obligations as described above and
the maximum liability upon the occurrence of the contingency giving rise to
the obligation, of any contingent obligations at such date; provided, however,
that the amount outstanding at any time of any Debt Incurred with original
issue discount is the face amount of such Debt less the remaining unamortized
portion of the original issue discount of such Debt at such time as determined
in conformity with GAAP.
"Deed of Trust and Security Agreement" means the Deed of Trust,
Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated
as of the date of this Indenture, between the Company, as trustor, and the
Trustee, as trustee.
"Default" means any event that is, or after notice or the passage of
time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Notes, and any and all successors
thereto appointed as depositary hereunder and having become such pursuant to
the applicable provision of this Indenture.
"Environmental Law" means any federal, state or local statute,
regulation, ordinance or rule which pertains to environmental matters.
"Equity Interests" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or limited);
(4) any other interest or participation that confers on a Person the
right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person; and
(5) any options, warrants and other rights to acquire or purchase any
of the foregoing.
"Excess Cash" means, with respect to any Interest Payment Date, the
sum of (A) the aggregate of all cash held by or on behalf of the Company and
the Subsidiaries on the date 30 days prior to such Interest Payment Date (the
"Determination Date"), (B) the net amount (which may be negative) of cash
receipts minus cash disbursements (not including cash interest payments
payable on the Notes) as set forth on the applicable Company Budget and (C)
the aggregate of all Temporary Cash Investments owned by or on behalf of the
Company and the Subsidiaries on such Determination Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchangeable Stock" means any Capital Stock which is exchangeable or
convertible into another security (other than Capital Stock of the Company or
any Wholly Owned Subsidiary which is neither Exchangeable Stock nor Redeemable
Stock).
"Event of Default" shall have the meaning set forth in Section 6.01.
"Fibers Assets" means any and all assets and properties owned by
Sterling Fibers, Inc. and Sterling Chemicals International, Inc., including
the acrylic fibers facility located in Santa Xxxx County, Florida.
"Fiscal Year" means the twelve-month period ending on December 30;
provided, however, that the Company can change the definition of Fiscal Year
at any time upon 90 days written notice to the Trustee.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Issue Date, including those set
forth:
(1) in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants,
(2) in statements and pronouncements of the Financial Accounting
Standards Board,
(3) in such other statements by such other entity as have been
approved by a significant segment of the accounting profession, and
(4) in the rules and regulations of the Commission governing the
inclusion of financial statements (including pro forma financial statements)
in periodic reports required to be filed pursuant to Section 13 of the
Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Global Note" means a Note, substantially in the form of Exhibit A
hereto, issued in accordance with Section 2.01 and Section 2.06 hereof.
"Global Note Legend" means the legend set forth in Section 2.06(d),
which is required to be placed on all Global Notes issued under this
Indenture.
"Guarantee" means, with respect to any Person, any obligation,
contingent or otherwise, of such Person directly or indirectly guaranteeing
any Debt or other obligation of any other Person and any obligation, direct or
indirect, contingent or otherwise of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase
or payment of) any Debt or other obligation of any other Person (whether
arising by virtue of partnership arrangements, or by agreement to keep-well,
to purchase assets, goods, securities or services, to take-or-pay or to
maintain financial statement conditions or otherwise), or
(2) entered into for purposes of assuring in any other manner the
obligee of any Debt or other obligation of any other Person of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or in part);
provided, however, that the term "Guarantee" shall not include endorsements
for collection or deposits in the ordinary course of business or guarantees of
obligations of a Subsidiary in the ordinary course of business if such
obligations do not constitute Debt of such Subsidiary. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodity Agreement (limited in amount to underlying exposure, and not for
speculative purposes).
"Holder" means a Person in whose name a Note is registered on the
registrar's books.
"Incur" means issue, assume, Guarantee, create, incur, suffer to
exist or otherwise become liable for; provided, however, that any Debt or
Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall
be deemed to be Incurred by such Subsidiary at the time it becomes a
Subsidiary. The term "Incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-interest bearing or other
discount security shall be deemed the Incurrence of Debt.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial interest
in the Global Note through a Participant.
"Interest Payment Date" shall have the meaning set forth in paragraph
1 of the Notes.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement
(limited in amount to underlying exposure, and not for speculative purposes)
designed to protect the Company or any Subsidiary against fluctuations in
interest rates.
"Investment" means, with respect to any Person, any loan or advance
to, any acquisition of Capital Stock, equity interest, obligation or other
security of, or capital contribution or other investment in, or any other
credit extension to (including by way of Guarantee of any Debt of), any other
Person.
"Issue Date" means _____________, 200[2], the date on which the Notes
(other than Additional Notes) are originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on which banking
institutions in the City of New York, in the city of the Corporate Trust
Office of the Trustee or at a place of payment are authorized by law,
regulation or executive order to remain closed. If a payment date is a Legal
Holiday, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue on such payment for the
intervening period.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Available Cash" from an Asset Disposition or a Sale of the Texas
City Facilities means cash payments received therefrom (including, to the
extent permitted, any cash payments received by way of deferred payment of
principal pursuant to a promissory note or installment receivable of any
Return of Capital or otherwise, but only as and when received, but excluding
any other consideration received in the form of assumption by the acquiring
Person of Debt or other obligations relating to such properties or assets that
are the subject of such Asset Disposition or received in any other noncash
form), in each case net of:
(1) all legal, title and recording expenses, commissions and other
fees and expenses incurred, and all Federal, state, provincial, foreign and
local taxes required to be accrued as a liability under GAAP, as a consequence
of such transaction,
(2) all payments made on any Debt to the extent secured by the assets
subject to such transaction, in accordance with the terms of any such Debt or
Lien upon or other security agreement of any kind with respect to such assets
(including but not limited to Debt evidenced by the Credit Agreement and
related documents), or which must by its terms, or in order to obtain a
necessary consent to such transaction, or by applicable law be repaid out of
the proceeds from such transaction,.
(3) all distributions and other payments required to be made to any
minority interest holders in Subsidiaries or joint ventures as a result of
such transaction, and
(4) the deduction of appropriate amounts provided by the sellers as a
reserve, in accordance with GAAP, against any liabilities associated with the
property or other assets disposed in such transaction and retained by the
Company or any Subsidiary after such transaction.
"Net Cash Proceeds" means, with respect to any issuance or sale of
Capital Stock, the cash proceeds of such issuance of sale net of attorneys'
fees, accountants' fees, underwriters' or placement agents' fees, discounts or
commissions and brokerage, consultants' and other fees, and other costs and
expenses actually incurred in connection with such issuance or sale and net of
taxes paid or payable as a result thereof.
"Non-Convertible Capital Stock" means, with respect to any
corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible
Capital Stock of such corporation; provided, however, that Non-Convertible
Capital Stock shall not include any Redeemable Stock or Exchangeable Stock.
"Notes" has the meaning assigned to it in the preamble to this
Indenture and shall include Additional Notes, if any.
"Obligations" has the meaning set forth in the Security Agreement.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate that meets the
requirements of Section 13.05 hereof signed on behalf of the Company by two
Officers of the Company, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of the Company.
"Opinion of Counsel" means an opinion that meets the requirements of
Section 13.05 hereof from legal counsel, who may be an employee of or counsel
to the Company, any Subsidiary of the Company or the Trustee.
"Participant" means with respect to the Depositary, a Person who has
an account with the Depositary.
"Patent Security Agreement" means the Patent Security Agreement,
substantially in the form of Exhibit A to the Security Agreement.
"Paying Agent" shall have the meaning set forth in Section 2.03.
"Permitted Debt" means:
(1) Debt represented by the Credit Agreement and the related
Guarantees by any Subsidiary;
(2) Debt existing on the Issue Date (other than Debt described in
Clause (1) or (2)) as listed on Schedule I;
(3) Refinancing Debt in respect of Permitted Debt;
(4) Hedging Obligations, provided, however, that with respect to
Interest Rate Agreements and Currency Agreements if such Currency Agreements
relate to Debt, only to the extent directly related to Debt permitted to be
incurred by the Company pursuant to this Indenture; and
(5) Debt in an amount that does not exceed $10 million in the
aggregate at any time outstanding represented by premium financing or similar
deferred payment obligations incurred with respect to insurance policies
purchased in the ordinary course of business and consistent with past
practice; and
(6) Other Debt incurred in the ordinary course of business and
consistent with past practice represented by [ ] and which is not in any of
the categories of Permitted Debt described above in clauses (1) through (6),
inclusive, which, together with the amount of Debt at any time outstanding
under clause (6), does not in the aggregate at any time outstanding exceed $5
million in principal amount.
"Permitted Holders" means:
(1) Resurgence Asset Management, L.L.C. or any controlled Affiliate
thereof;
(2) any Permitted Transferee with respect to any Person covered by
the preceding clause (1); or
(3) any savings or investment plan or employee stock ownership plan
sponsored by the Company.
"Permitted Investment" means an Investment by the Company or any
Subsidiary in:
(1) a Wholly Owned Subsidiary or a Person that will, upon the making
of such Investment, become a Wholly Owned Subsidiary; provided, however, that
such Wholly Owned Subsidiary's or Person's primary business is reasonably
related to the business of the Company and its Subsidiaries.
(2) Temporary Cash Investments;
(3) receivables owing to the Company or any Subsidiary if created or
acquired in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms;
(4) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Subsidiary or in satisfaction of judgments;
(5) any Person to the extent such Investment represents the noncash
portion of the consideration received for (A) an Asset Disposition as
permitted pursuant to Section 4.11 (B), a Sale of the Texas City Facilities as
permitted pursuant to Section 4.16;
(6) Investments by the Company or a Subsidiary in a Person to the
extent the consideration for such Investment consists of shares of Capital
Stock of the Company (other than Redeemable Stock and Capital Stock
convertible into or exchangeable for Redeemable Stock of the Company);
(7) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses for
accounting purposes and that are made in the ordinary course of business;
(8) loans or advances to employees or to a trust for the benefit of
such employees that are made in the ordinary course of business of the Company
or such Subsidiary; and
(9) another Person if as a result of such Investment such Person is
merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Subsidiary; provided,
however, that such Person's primary business is reasonably related to the
business of the Company and its Subsidiaries.
"Permitted Liens" means:
(1) Liens (other than Liens securing the Credit Agreement) existing
on the Issue Date and listed on Schedule II hereto.
(2) Liens in favor of the Collateral Agent under the Security
Documents for the benefit of the Holders;
(3) Liens on assets securing the Credit Agreement, other than assets
constituting any part of the Pledged Collateral;
(4) Liens for taxes, assessments or other governmental charges or
levies not yet due or that are being contested in good faith by appropriate
action or proceedings promptly instituted and diligently pursued and with
respect to which adequate reserves in conformity with GAAP are being
maintained;
(5) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen, repairmen, workmen, crews, maritime liens and other
Liens imposed by law created in the ordinary course of business for amounts
that are not past due or that are being contested in good faith by appropriate
action or proceedings and with respect to which adequate reserves in
accordance with GAAP are being maintained;
(6) Liens incurred for deposits or pledges made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security, old age or other similar
obligations, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations (exclusive of obligations
for the payment of borrowed money) incurred in the ordinary course of
business;
(7) minor irregularities in title, boundaries, or other survey
defects, easements, rights-of-way, restrictions, servitudes, permits,
reservations, exceptions, zoning regulations, conditions, covenants, mineral
or royalty rights or reservations or oil, gas and mineral leases and rights of
others in any property of the Company or any Subsidiary for streets, roads,
bridges, pipes, pipe lines, railroads, electric transmission and distribution
lines, telegraph and telephone lines, the removal of oil, gas or other
minerals or other similar purposes, flood control, water rights, rights of
others with respect to navigable waters, sewage and drainage rights and other
similar charges or encumbrances existing as of the Issue Date (or granted by
the Company or any Subsidiary in the ordinary course of business) that do not,
in the aggregate, materially impair the value of the property of the Company
or any Subsidiary or the occupation, use and enjoyment by the Company or any
of its Subsidiaries of any of their respective properties in the normal course
of business;
(8) Liens securing an obligation of a third party neither created,
assumed nor Guaranteed by the Company or any Subsidiary upon lands over which
easements or similar rights are acquired by the Company or any Subsidiary in
the ordinary course of business of the Company or any Subsidiary;
(9) terminable or short term leases or permits for occupancy, which
leases or permits expressly grant to the Company or any Subsidiary the right
to terminate them at any time on not more than six months' notice and which
occupancy does not interfere with the operation of the business of the Company
or any Subsidiary;
(10) any Lien or privilege arising solely by operation of law and
vested in any lessor, licensor or permittor on personal property located on
premises leased by the Company or any Subsidiary, for rent to become due or
for other obligations or acts to be performed, the payment of which rent or
the performance of which other obligations or acts is required under leases,
subleases, licenses or permits;
(11) Liens or privileges of any employee of the Company or any
Subsidiary for salary or wages earned but not yet payable;
(12) any obligations or duties affecting any of the property of the
Company or its Subsidiaries to any municipality or public authority with
respect to any franchise, grant, license or permit that do not impair the use
of such property for the purposes for which it is held;
(13) Liens on property that is the subject of capital projects
between the Company and a third party that has a production, operating or
similar agreement with the Company; provided, however, that such Liens are
expressly limited to the assets directly financed by such third party;
(14) Liens (other than Liens securing the Credit Agreement) upon
property or assets acquired by the Company after the Issue Date; provided,
however, that such Liens do not extend to any property or assets other than
such acquired property or assets and such Liens do not attach to any of the
assets constituting the Pledged Collateral;
(15) Liens resulting from operation of law with respect to any
judgments, awards or orders to the extent that such judgments, awards or
orders do not cause or constitute an Event of Default;
(16) Liens on any property in favor of domestic or foreign
governmental bodies to secure partial, progress, advance or other payments
pursuant to any contract or statute, not yet due and payable;
(17) Liens (other than Liens securing the Credit Agreement) securing
Debt incurred to finance the construction, purchase or lease of, or repairs,
improvements or additions to, property of such Person used in the business of
the Company, to the extent such Debt is otherwise permitted by this Indenture;
(18) Liens with respect to the so called "greenbelt" or "buffer zone"
properties, for as long as those properties are used solely for "greenbelt" or
buffer zone" purposes;
(19) leases and ground leases of underutilized or vacant properties
of the Company or any Subsidiary to third parties with which the Company has a
production, co-production, co-generation, operating or other arrangement or to
third party providers of energy or raw materials in the ordinary course of
business of the Company or a Subsidiary, provided such leases do not
materially interfere with the operation of the business of the Company or any
Subsidiary or materially diminish the value of the PP&E;
(20) easements, rights-of-way, restrictions and other similar charges
or encumbrances granted to others, in each case incidental to, and not
interfering with, the ordinary conduct of the business of the Company or any
of its Subsidiaries, provided that such Liens are not violated by the existing
PP&E and do not, in the aggregate, materially diminish the value of the PP&E;
(21) the burdens of any law or governmental regulation or permit
requiring the Company to maintain certain facilities or perform certain acts
as a condition of its occupancy of or interference with any public lands or
any river or stream or navigable waters;
(22) extensions, renewals, modifications or replacements of any Lien
referred to in clauses (1) through (21) of this definition, provided that such
Lien is otherwise permitted by the terms hereof and, with respect to Liens
securing Debt, no extension or renewal Lien shall (A) secure more than the
amount of the Debt or other obligations secured by the Lien being so extended
or renewed or (B) extend to any property or assets not subject to the Lien
being so extended or renewed; and
(23) Liens incurred in the ordinary course of business of the Company
and its Subsidiaries that do not secure Debt and which have a value that in
the aggregate does not exceed $5.0 million at any one time outstanding.
"Permitted Transferee" means with respect to any Person:
(1) in the case of an entity, any Affiliate of such Person; and
(2) in the case of an individual, any person related by lineal or
collateral consanguinity to such individual or to the spouse of such
individual (adopted persons shall be considered the natural born child of
their adoptive parents).
Lineal consanguinity is that relationship that exists between persons of whom
one is descended (or ascended) in a direct line from the other, as between
son, father, grandfather and great-grandfather. Collateral consanguinity is
that relationship that exists between persons who have the same ancestors, but
who do not descend (or ascend) from the other, as between uncle and nephew, or
cousin and cousin, in each case to whom such Xxxxxx has transferred common
stock of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Pledged Collateral" means any assets of the Company or any
Subsidiary Guarantor defined as "Trust Premises", "Collateral" and "Patent
Collateral" in the Security Documents.
"Preferred Stock" as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PP&E" means the real property, production facilities and certain
related general intangibles and other assets currently owned by the Company
and its Subsidiaries, a first lien priority lien on which will secure the
Notes and the Subsidiary Guarantees, as provided in the Security Documents.
"Redeemable Stock" means any Capital Stock that by its terms or
otherwise is required to be redeemed on or prior to the Stated Maturity of the
Notes or is redeemable at the option of the Holder thereof without regard to
the occurrence of any contingency at any time on or prior to the Stated
Maturity of the Notes.
"Registrar" shall have the meaning set forth in Section 2.03.
"Refinance" means, in respect of any Debt, to refinance, extend,
renew, refund, repay, prepay, redeem, defease or retire, or to issue other
Debt in exchange or replacement for, such Debt. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Debt" means Debt that Refinances any Debt of the Company
or any Subsidiary existing on the Issue Date or Incurred in compliance with
this Indenture including Debt that Refinances Refinancing Debt; provided,
however that:
(1) such Refinancing Debt has a Stated Maturity no earlier than the
Stated Maturity of the Debt being Refinanced,
(2) such Refinancing Debt has an Average Life at the time such
Refinancing Debt is Incurred that is equal to or greater than the Average Life
of the Debt being Refinanced,
(3) such Refinancing Debt has an aggregate principal amount (or if
incurred with original issue discount, an aggregate issue price) that is equal
to or less than the aggregate principal amount (or if Incurred with original
issue discount, the aggregate accreted value) then outstanding or committed
(plus fees and expenses, including any premium and defeasance costs) under the
Debt being Refinanced, and
(4) with respect to any Refinancing Debt, such Refinancing Debt shall
rank no more senior, and shall be at least as subordinated, in right of
payment to the Notes as the Debt being so Refinanced;
provided, further, however, that Refinancing Debt shall not include Debt of a
Subsidiary (other than a Wholly Owned Subsidiary which is also a Subsidiary
Guarantor) that Refinances Debt of the Company.
"Required Environmental Capital Expenditure" means a Capital
Expenditure made by the Company or a Subsidiary to comply with an
Environmental Law the noncompliance of which is reasonably likely to (a) have
a material adverse effect on the Company and its Subsidiaries or (b)
materially impair the ability of the Company and its Subsidiaries to operate
its business in any material respect in the jurisdiction in which such
compliance is required.
"Responsible Officer" means, (a) when used with respect to the
Trustee, any officer within the Corporate Trust Administration of the Trustee
(or any successor group of the Trustee) or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject, and
(b) when used with respect to the Company, any Officer of the Company.
"Restricted Payment" shall have the meaning set forth in Section 4.08.
"Return of Capital" means, with respect to any Equity Interest, any
sums paid on or in respect of such Equity Interest (1) in redemption of, or in
exchange for, such Equity Interest or (2) in connection with a partial or
total liquidation or dissolution of the issuer of such Equity Interest.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Subsidiary
transfers such property to a Person (other than the Company or a Wholly Owned
Subsidiary which is also a Subsidiary Guarantor) and the Company or Subsidiary
leases it from such Person.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the Security Agreement, dated as of the
date of this Indenture, among the Borrowers and National City Bank, as
Collateral Agent and Indenture Trustee, pursuant to which the Borrowers have
granted to the holders of the Notes, a first priority perfected security
interest in the Pledged Collateral.
"Security Documents" means, collectively, all of the
agreements, instruments, documents, pledges or filings executed in connection
with granting, or that otherwise evidence, the Lien of the Collateral Agent in
the Pledged Collateral, including, without limitation, the Security Agreement,
the Deed of Trust and Security Agreement, the Subsidiary Guarantees and the
Patent Security Agreement.
"S&P" means Standard & Poor's Ratings Group.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the principal of such
security or Debt is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the Holder thereof upon the happening of any
contingency unless such contingency has occurred).
"Subordinated Obligation" means any Debt of the Company (whether
outstanding on the Issue Date or hereafter Incurred) which is subordinate or
junior in right of payment to the Notes.
"Subsidiary" means any corporation, association, partnership or other
business entity of which than more 50% of the total voting power of shares of
Capital Stock or other interests (including partnership interests) entitled
(without regard to the occurrence of any contingency) to vote in the election
of directors, managers or trustees thereof at the time is owned or controlled,
directly or indirectly, by:
(1) the Company,
(2) the Company and one or more Subsidiaries, or
(3) one or more Subsidiaries.
"Subsidiary Guarantees" means the guarantees of the Notes by the
Subsidiary Guarantors.
"Subsidiary Guarantors" means Sterling Chemicals Energy, Inc. and any
other entities that at any time become Subsidiaries of the Company.
"Tangible Property" means all land, buildings, machinery and
equipment.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United States of
America or any agency thereof or obligations Guaranteed by the United States
of America or any agency thereof,
(2) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 270 days of the date of acquisition
thereof issued by a bank or trust company which is organized under the laws of
the United States of America, any state thereof or any foreign country
recognized by the United States, and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $50.0 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated
"A" (or such similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization (as defined in Rule 436 under the
Securities Act) or any money market fund sponsored by a registered broker
dealer or mutual fund distributor,
(3) repurchase obligations with a term of not more than 30 days for
underlying securities of the types described in clause (1) above entered into
with a bank meeting the qualifications described in clause (2) above,
(4) investments in commercial paper, maturing not more than 180 days
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any Investment therein
is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or higher)
according to S&P,
(5) investments in securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least "A" by S&P or "A"
by Xxxxx'x,
(6) participations (for a tenor of not more than 90 days) in loans to
Persons having short-term credit ratings of at least "A-1" and "P-1" by S&P
and Xxxxx'x, respectively, and
(7) with respect to any Non-U.S. Subsidiary organized in Canada,
commercial paper of Canadian companies rated R-1 High or the equivalent
thereof by Dominion Bond Rating Services with maturities of less than one
year.
"Texas City Facilities" means the petrochemicals production
facilities that are located at Texas City, Texas.
"Texas City Facilities Subsidiary" means the Company and any other
Affiliate that may hereafter own the Texas City Facilities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"Trustee" means National City Bank, as trustee hereunder, until a
successor replaces it in accordance with the applicable provisions of this
Indenture and thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable at the issuer's option.
"U.S. Subsidiary" means a Subsidiary that is incorporated in a
jurisdiction in the United States, or a state thereof or the District of
Columbia.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Subsidiary all of the Capital Stock
of which (other than directors' qualifying shares) is owned by the Company
and/or another Wholly Owned Subsidiary.
Section 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- -------
"Affiliate Transaction"......................................... 4.12
"Asset Sale Offer".............................................. 3.09
"Change of Control Offer"....................................... 4.15
"Change of Control Payment"..................................... 4.15
"Change of Control Payment Date"................................ 4.15
"Covenant Defeasance"........................................... 8.03
"DTC"........................................................... 2.03
"ESOP".......................................................... 4.08
"Event of Default".............................................. 6.01
"Leases"........................................................ 10.06
"Legal Defeasance".............................................. 8.02
"Offer Amount".................................................. 3.09
"Offer Period".................................................. 3.09
"Paying Agent".................................................. 2.03
"Payment Default"............................................... 6.01
"Permitted Debt"................................................ 4.10
"Purchase Date"................................................. 3.09
"Registrar"..................................................... 2.03
"Restricted Payments"........................................... 4.08
"Sale of the Texas City Facilities"............................. 4.16
"Successor Company"............................................. 5.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees means the
Company and the Subsidiary Guarantors, respectively, and any successor obligor
upon the Notes and the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
----------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions; and
(f) references to sections of or rules under the Securities Act
shall be deemed to include substitute, replacement of successor sections or
rules adopted by the Commission from time to time; and
(g) the word "including" means including without limitation and
the terms "include" or "includes" shall have correlative meanings.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
---------------
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company,
the Subsidiary Guarantors and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be
bound thereby. However, to the extent any provision of any Note conflicts
with the express provisions of this Indenture, the provisions of this
Indenture shall govern and be controlling.
(b) Form of Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the
Global Note Legend thereon and the "Schedule of Exchanges of Interests in
the Global Note" attached thereto). Notes issued in definitive form shall
be substantially in the form of Exhibit A attached hereto (but without the
Global Note Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Note" attached thereto). Each Global Note shall
represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount
of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may
from time to time be reduced or increased, as appropriate, to reflect
exchanges, transfers and redemptions and the issuance of Additional Notes.
Any increase or decrease in the aggregate principal amount of outstanding
Notes represented thereby shall be made by the Trustee in the records of
the Trustee or the Custodian, at the direction of the Trustee in accordance
with instructions given by the Holder thereof as required by Section 2.06
hereof or, in the case of the issuance of Additional Notes, in accordance
with an Authentication Order delivered by the Company.
Section 2.02. Execution and Authentication.
----------------------------
Two Officers shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that
the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by
two Officers (an "Authentication Order"), authenticate Notes for original
issue up to (i) the aggregate principal amount stated in paragraph 4 of the
Notes and (ii) the aggregate principal amount of any Additional Notes to be
issued in lieu of payment of interest on the Notes in cash upon delivery of
an Authentication Order as specified in the first paragraph of Section 4.01
hereof. In the event of the issuance of any Additional Notes in respect of
payment of interest on the Global Note, the Trustee shall notify the
Depositary of an increase in the amount of the Global Note and record the
amount of any increase in the aggregate principal amount of the Global Note
to reflect the issuance of any such Additional Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed the
aggregate of the amounts of Notes originally issued pursuant to clauses (i)
or (ii) of the first sentence of this paragraph except as provided in
Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders
or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes (including Additional
Notes) and of their transfer and exchange. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such.
The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent and to act as Custodian with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money. If the Company
or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent. Upon any bankruptcy or reorganization proceedings relating to
the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05. Lists.
-----
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of all Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and
addresses of the Holders of Notes and the Company shall otherwise comply
with TIA Section 312(a).
Section 2.06. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the
Depositary notifies the Company that it is unwilling or unable to continue
to act as Depositary and a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary
or that the Depositary is no longer a clearing agency registered under the
Exchange Act, (ii) the Company in its sole discretion determines that the
Global Notes (in whole but not in part) should be exchanged for Definitive
Notes and delivers a written notice to such effect to the Trustee or (iii)
there shall have occurred and be continuing a Default or an Event of
Default with respect to the Notes. Upon the occurrence of any of the
preceding events in (i), (ii) or (iii) above, Definitive Notes shall be
issued in such names as the Depositary shall instruct the Trustee in
accordance with its customary procedures. In addition, beneficial interests
in a Global Note may be exchanged for Definitive Notes upon prior written
notice given to the Trustee by or on behalf of the Depositary in accordance
with this Indenture. Global Notes also may be exchanged or replaced, in
whole or in part, as provided in Sections 2.06 and 2.07 hereof. Except as
otherwise provided in this Section 2.06(a), every Note authenticated and
delivered in exchange for, or in lieu of, a Global Note or any portion
thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note and owners of interests in Global Notes will not have Notes registered
in their names, will not receive physical delivery of Definitive Notes and
will not be considered the registered owners or Holders thereof under this
Indenture for any purpose. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and Applicable Procedures.
(i) Beneficial Interests in the Global Note for a Beneficial Interest
in the Global Note. Beneficial interests the Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) Beneficial Interests in Global Notes to Definitive Notes. Subject
to Section 2.06(a) hereof, if any holder of a beneficial interest in
an a Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then,
upon satisfaction of the conditions set forth in Section 2.06(c)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(e) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions
a Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(b)(ii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered.
(iii) Definitive Notes to Beneficial Interests in Global Notes. A
Holder of a Definitive Note may exchange such Note for a beneficial
interest in a Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial interest
in a Global Note at any time. Upon receipt of a request for such an
exchange or transfer, the Trustee shall cancel the applicable
Definitive Note and increase or cause to be increased the aggregate
principal amount of the Global Note.
(c) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(c), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present
or surrender to the Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to
the Registrar duly executed by such Holder or by its attorney, duly
authorized in writing.
(d) Legend. The following legends shall appear on the face of all
Global Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(e) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note
shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a
Person for Definitive Notes, the principal amount of Notes represented by
such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction.
(f) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.11,
4.15, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between a record
date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent, or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes
in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications and certificates required to be submitted to
the Registrar pursuant to this Section 2.06 to effect a registration
of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction,
loss or theft of any Note, the Company shall issue and the Trustee, upon
receipt of an Authentication Order, shall authenticate a replacement Note
if the Trustee's requirements are met. If reasonably required by the
Trustee or the Company, an indemnity bond must be supplied by the Holder
that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company or the Trustee may charge for its expenses in
replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by
the Trustee in accordance with the provisions hereof and those described in
this Section 2.08 as not outstanding. Except as set forth in Section 2.09
hereof, a Note does not cease to be outstanding because the Company or an
Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that
the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease
to accrue interest.
Section 2.09. Treasury Notes.
---------------
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes
owned by the Company, or by any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company, shall be considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Notes that the Trustee knows
are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
---------------
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange,
payment, repayment or cancellation. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall destroy canceled Notes
(subject to the record retention requirement of the Exchange Act).
Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that
it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the applicable
rate provided in the Notes and in Section 4.01 hereof. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed
to be paid on each Note and the date of the proposed payment. The Company
shall fix or cause to be fixed each such special record date and payment
date, provided that no such special record date shall be less than 10 days
prior to the related payment date for such defaulted interest. At least 15
days before the special record date, the Company (or, upon the written
request of the Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
Section 2.13. Exemption From Federal and State Law
Securities Registration Requirements.
-------------------------------------
The Notes are issued pursuant to Section 1145 of the Bankruptcy
Code. The Notes may be sold by a Holder who is not an "underwriter" as that
term is used in Section 1145(b) of the Code publicly (whether through a
broker or not) or in privately negotiated transactions, in each case,
without registration under federal or state law.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 45 days but not more than 60 days before a redemption
date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the
redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed, or purchased in
an offer to purchase at any time, the Trustee shall select the Notes to be
redeemed or purchased among the Holders of the Notes in compliance with the
requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the
redemption date by the Trustee from the outstanding Notes not previously
called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected for redemption shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are
to be redeemed, the entire outstanding amount of Notes held by such Holder,
even if not a multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Notes
called for redemption also apply to portions of Notes called for
redemption.
Section 3.03. Notice of Redemption.
--------------------
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption
date upon surrender of such Note, a new Note or Notes in principal amount
equal to the unredeemed portion shall be issued upon cancellation of the
original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the redemption date;
(g) the paragraph of the Notes and/or Section of this Indenture
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however,
that the Company shall have delivered to the Trustee, at least 45 days
prior to the redemption date, an Officers' Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable
on the redemption date at the redemption price. A notice of redemption may
not be conditional. Failure to give notice to a Holder of a Note or any
defect in any notice shall not affect the validity of any notice to any
other Holder of a Note.
Section 3.05. Deposit of Redemption Price.
---------------------------
At least one Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent (or if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest
on all Notes to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee
or the Paying Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all Notes to be
redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue
on the Notes or the portions of Notes called for redemption. If a Note is
redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid
to the Person in whose name such Note was registered at the close of
business on such record date. If any Note called for redemption shall not
be so paid upon surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest shall be paid on
the unpaid principal, from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes and in Section
4.01 hereof.
Section 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the Company
shall issue and, upon an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal
in principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
--------------------
(a) The Company shall have the option to redeem the Notes, in
whole or in part, at any time on not less than 30 days' prior notice at a
redemption price equal to 100% of the principal amount thereof plus accrued
and unpaid interest thereon to the redemption date.
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
--------------------
The Company shall not be required to make mandatory redemption,
sinking fund payments or repurchases with respect to the Notes, except as
specified in Sections 4.11, 4.15 and 4.16 hereof.
Section 3.09. Offer to Purchase by Application of Net Available Cash.
------------------------------------------------------
In the event that, pursuant to Section 4.11 hereof, the Company
shall be required to commence an offer to all Holders to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later
than 5 Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.11 hereof (the "Offer
Amount") or, if less than the Offer Amount has been tendered, all Notes
tendered in response to the Asset Sale Offer. Payment for any Notes so
purchased shall be made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is registered at
the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders.
The notice shall contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to the Asset Sale Offer. The Asset
Sale Offer shall be made to all Holders. The notice, which shall govern the
terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.09 and Section 4.11 hereof and the length of time the Asset Sale
Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall
continue to accrue interest;
(d) that, unless the Company defaults in making such payment, any
Note accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an
Asset Sale Offer may elect to have Notes purchased in integral multiples of
$1,000 only;
(f) that Holders electing to have a Note purchased pursuant to any
Asset Sale Offer shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, or transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least 3 days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder delivered for purchase
and a statement that such Xxxxxx is withdrawing his election to have such
Note purchased;
(h) that, if the aggregate principal amount of Notes surrendered
by Holders exceeds the Offer Amount, the Company shall select the Notes to
be purchased on a pro rata basis (with such adjustments as may be deemed
appropriate by the Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be
issued new Notes equal in principal amount to the unpurchased portion of
the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the
Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by
the Company in accordance with the terms of this Section 3.09. The Company,
the Depositary or the Paying Agent, as the case may be, shall promptly (but
in any case not later than 5 days after the Purchase Date) mail or deliver
to each tendering Holder an amount equal to the purchase price of the Notes
tendered by such Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee, upon written
request from the Company shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion
of the Note surrendered. Any Note not so accepted shall be promptly mailed
or delivered by the Company to the Holder thereof. The Company shall
publicly announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
----------------
The Company shall pay or cause to be paid the principal of,
premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the
due date money deposited by the Company in immediately available funds and
designated for payment of and sufficient to pay all principal, premium, if
any, and interest then due. On any Interest Payment Date occurring on or
prior to the date that is two (2) years after the Issue Date, at the
discretion of the Company, the Company may elect to pay interest (and only
interest) in Additional Notes in lieu of the payment of cash in the amount
of the interest due and payable on such Interest Payment Date, by executing
and delivering to the Trustee for authentication, together with an
Authentication Order given not less than 15 days nor more than 60 days
prior to such Interest Payment Date for the authentication and delivery of,
Additional Notes in an aggregate principal amount equal to 133.75% of the
amount of such interest otherwise payable in cash; and the Trustee in
accordance with such Authentication Order shall authenticate and deliver to
the Holder of record on the related record date (as specified on the face
of the Notes) such Additional Notes requested in such Authentication Order,
and the due issuance of such Additional Notes shall constitute full payment
of such interest; provided, however, that (a) the Company shall not issue
Additional Notes to pay interest in lieu of cash on any Interest Payment
Date if Excess Cash[, minus the aggregate amount of loans outstanding under
the Credit Agreement] for such Interest Payment Date, less the amount of
interest payable in cash on such Interest Payment Date on the Notes, is at
least $15 million; (b) interest shall not so be payable in Additional Notes
in lieu of cash on any Interest Payment Date occurring after the date two
years after the Issue Date; and (c) in lieu of the issuance to any
particular Holder of an Additional Note the principal amount of which would
exceed the largest integral multiple of $1,000 which is less than or equal
to such principal amount, the Company shall pay the amount of such excess
in cash to such Holder.
If the Company elects to pay interest in the form of Additional
Notes as provided in the immediately preceding paragraph, the Company shall
deliver to the Trustee, with sufficient copies for delivery by the Trustee
to each Holder, at least 15 days and no more than 60 days prior to the
relevant Interest Payment Date, notice stating (i) that the Company has
elected to pay interest on such Interest Payment Date in the form of
Additional Notes having an aggregate principal amount equal to 133.75% of
the amount of interest otherwise payable in cash on such Interest Payment
Date (except that, in lieu of the issuance to any particular Holder of an
Additional Note the principal amount of which would exceed the largest
integral multiple of $1,000 which is less than or equal to such principal
amount, the Company shall pay the amount of such excess in cash to such
Holder); (ii) the amount of interest payable in Additional Notes per $1,000
aggregate principal amount of Notes (without giving effect to clause (c) of
the proviso to the last sentence of the immediately preceding paragraph);
and (iii) the Interest Payment Date on which such interest is due.
All Additional Notes shall be issued in the same series and as
part of the same class as the Notes originally issued (or previously issued
as Additional Notes) pursuant to this Indenture, and all Holders of
Additional Notes shall be treated as Holders of Notes for any and all
purposes of any action of Holders or otherwise pursuant to this Indenture
except as may otherwise be required by law. Any such Additional Notes shall
be governed by this Indenture and the terms of each such Additional Note
shall be identical to the terms of the Notes except with respect to, as the
case may be, the designation of such Additional Note (which may (but need
not) indicate the Interest Payment Date of its original issuance), its
aggregate principal amount, its CUSIP number or other required
identifications, any required legends (including with respect to taxation)
and the date from which interest accrues and except as may otherwise be
required by law.
The Company shall, to the extent lawful, pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on
overdue principal at the then applicable interest rate on the Notes; it
shall, to the extent lawful, pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest at the same rate.
Section 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, the City
of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-Registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices
and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of New York for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Reports.
-------
Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, the Company, for so long
as it is permitted to do so, shall furnish to the Holders of Notes (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
and, with respect to the annual information only, a report thereon by the
Company's certified independent accountants and (ii) all current reports
that would be required to be filed with the Commission on Form 8-K if the
Company were required to file such reports, in each case, within the time
periods specified in the Commission's rules and regulations. In addition,
whether or not required by the rules and regulations of the Commission, the
Company shall file a copy of all such information and reports with the
Commission for public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will not accept
such a filing) and make such information available to securities analysts
and prospective investors upon request. The Company shall at all times
comply with TIA Section 314(a).
Section 4.04. Compliance Certificate.
----------------------
(a) The Company and each Subsidiary Guarantor shall deliver to the
Trustee, within 90 days after the end of each Fiscal Year, an Officers'
Certificate stating that a review of the activities of the Company and its
Subsidiaries during the preceding Fiscal Year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under
this Indenture and the Security Documents, and further stating, as to each
such Officer signing such certificate, that to the best of his or her
knowledge the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and the Security Documents and
is not in default in the performance or observance of any of the terms,
provisions and conditions of this Indenture or the Security Documents (or,
if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto)
and that to the best of his or her knowledge no event has occurred and
remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what action the Company
is taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within 5 days after the occurrence of
any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes.
-----
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
------------------------------
The Company and each of the Subsidiary Guarantors covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company and each of the Subsidiary
Guarantors (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
Section 4.07. Limitation on Dividends.
-----------------------
The Company shall not, and shall not permit any Subsidiary,
directly or indirectly, to declare or pay any dividend or make any other
payment or distribution on or in respect of the Capital Stock of the
Company or any Subsidiary (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any
Subsidiary) or similar payment to the direct or indirect holders of the
Capital Stock of the Company or any Subsidiary, except dividends or
distributions payable solely in its Non-Convertible Capital or in options,
warrants or other rights to purchase its Non-Convertible Capital Stock and
dividends or other distributions payable solely to the Company or a Wholly
Owned Subsidiary).
Section 4.08. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any Subsidiary,
directly or indirectly, to:
(1) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company, any direct or indirect
parent of the Company or any Subsidiary (other than any such
Capital Stock owned by the Company or any Wholly Owned
Subsidiary);
(2) purchase, repurchase, redeem, defease or otherwise
acquire or retire for value, prior to scheduled maturity,
scheduled repayment or scheduled sinking fund payment, any
Subordinated Obligations (other than purchase, repurchase or
other acquisition of Subordinated Obligations purchased in
anticipation of satisfying a sinking fund obligation, principal
installment or final maturity, in each case due within one year
of the date of acquisition); or
(3) make any Investment in any Person (other than a
Permitted Investment);
(any such purchase, redemption, repurchase, defeasance, other
acquisition, retirement or Investment being herein referred to as
a "Restricted Payment").
So long as no Default or Event of Default has occurred and is continuing or
would be caused thereby, the provisions of the foregoing paragraph shall not
prohibit:
(1) any purchase or redemption of Subordinated
Obligations of the Company or any Subsidiary Guarantor from Net
Available Cash to the extent permitted under Section 4.11 or
4.16 hereof;
(2) payments in the form of Capital Stock of the
Company to any employee stock ownership plan of the Company
("ESOP") on behalf of the employees of the Company or its
Subsidiaries; provided, however, that all such payments by the
Company and its Subsidiaries may not exceed, during any fiscal
year, 10% of the aggregate compensation expense during such
fiscal year attributable to employees of the Company and its
Subsidiaries who are eligible to participate in the ESOP; or
(3) to the extent required by Section 409(h)(l)(B) of
the Code and the regulations thereunder, a payment by the
Company to the ESOP or directly to the participants and
beneficiaries of the ESOP to be used to repurchase shares of
Capital Stock of the Company distributed to the participants
and beneficiaries of the ESOP.
Section 4.09. Limitation on Restrictions on Distributions from Subsidiaries.
-------------------------------------------------------------
The Company shall not, and shall not permit any Subsidiary to,
create or permit to exist or become effective any consensual encumbrance or
restriction on the ability 0 of any Subsidiary to:
(1) pay dividends or make any other distributions on
its Capital Stock or pay any Debt or other obligation owed to
the Company or any other Subsidiary;
(2) make any loans or advances to the Company or any
other Subsidiary; or
(3) transfer any of its property or assets to the
Company or any other Subsidiary; except:
(A) any encumbrance or restriction pursuant to the Credit
Agreement, this Indenture or any other agreement in effect on the
Issue Date or pursuant to the issuance of the Notes;
(B) solely with respect to a Subsidiary acquired by the
Company after the Issue Date, any encumbrance or restriction with
respect to a Subsidiary pursuant to an agreement relating to any Debt
Incurred by such Subsidiary on or prior to the date on which such
Subsidiary was acquired by the Company (other than Debt Incurred as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Company) and outstanding on such
date;
(C) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Debt Incurred pursuant to an agreement
referred to in clause (A) or (B) above or contained in any amendment
to an agreement referred to in clause (A) or (B) above; provided,
however, that the encumbrances and restrictions contained in any such
Refinancing agreement or amendment are no less favorable to the
Holders than encumbrances and restrictions with respect to such
Subsidiary contained in such agreements,
(D) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease or other customary non-assignment provisions in contracts (other
than contracts that constitute Debt) entered into the ordinary course
of business to the extent such provisions restrict the transfer of the
assets subject to such contracts;
(E) in the case of clause (3) above, restrictions contained
in security agreements or mortgages securing Debt of a Subsidiary to
the extent such restrictions restrict the transfer of the property
subject to such security agreements or mortgages;
(F) encumbrances or restrictions imposed by operation of
applicable law; and
(G) any restriction with respect to a Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of
all or substantially all of the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition.
Section 4.10. Limitation on Debt.
------------------
(a) The Company will not, and will not permit any Subsidiary to,
directly or indirectly, Incur any Debt, except:
(1) Debt represented by the Notes and the related
Subsidiary Guarantees;
(2) Debt of the Company owed to and held by a Wholly
Owned Subsidiary; provided, however, that any subsequent
issuance or transfer of any Capital Stock that results in such
Wholly Owned Subsidiary ceasing to be a Wholly Owned Subsidiary
or any transfer of such Debt (other than to a Wholly Owned
Subsidiary) shall be deemed, in each case, to constitute the
issuance of such Debt by the Company; and
(3) Permitted Debt.
(b) Notwithstanding paragraph (a) the Company and its Subsidiaries
shall not Incur any Debt if the proceeds thereof are used, directly or
indirectly, to repay, prepay, redeem, defease, retire, refund or refinance
any Subordinated Obligations.
Section 4.11. Asset Sales.
-----------
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, consummate any Asset Disposition unless:
(1) the Company or the Subsidiary receives
consideration at the time of such Asset Disposition at least
equal to the fair market value, as determined in good faith by
the Board of Directors (including as to the value of all
noncash consideration), of the shares and assets subject to
such Asset Disposition and at least 85% of the consideration
thereof received by the Company or such Subsidiary is in the
form of cash or cash equivalents; and
(2) an amount equal to 100% of the Net Available Cash
from such Asset Disposition is applied by the Company (or such
Subsidiary, as the case may be):
(A) first, at the Company's election to the investment by the
Company in assets to replace the assets that were the subject of such
Asset Disposition or an asset that (as determined by the Board of
Directors) will be used in the business of the Company or a Wholly
Owned Subsidiary existing on the date of original issuance of the
Notes or in businesses reasonably related thereto, in each case within
the later of one year from the date of such Asset Disposition or the
receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net
Available Cash after application and in accordance with clause (A), to
make an offer to purchase Notes pursuant to and subject to the
conditions contained in Section 3.09 hereof; and
(C) third, to the extent of the balance of such Net Available
Cash after application in accordance with clauses (A) and (B) to the
acquisition by the Company or any Wholly Owned Subsidiary of Tangible
Property or the prepayment, repayment or purchase of Debt (other than
any Redeemable Stock) of the Company or Debt of any Wholly Owned
Subsidiary (in either case other than Debt owed to the Company or an
Affiliate of the Company), in each case within one year from the later
of the receipt of such Net Available Cash and the date the offer
described in clause (C) above is consummated.
Pending application of Net Available Cash pursuant to this
paragraph, such Net Available Cash (other than any such Net Available Cash
comprised of Credit Agreement Collateral) shall be invested in Temporary
Cash Investments.
For the purposes of this Section 4.11, the following are deemed to
be "cash equivalents":
(1) the express assumption of Debt of the Company or
any Subsidiary (other than the Notes) and the release of the
Company or any Subsidiary from all liability on such Debt; and
(2) securities received by the Company or any
Subsidiary that are converted by the Company or any Subsidiary
into cash within 60 days of the receipt of such securities.
In the event of an Asset Disposition that requires the purchase of
the Notes pursuant to clause (2)(B) above, the Company will be required to
purchase Notes tendered pursuant to an offer by the Company for the Notes
at a purchase price of 100% of their principal amount (without premium)
plus accrued but unpaid interest, if any, in accordance with the procedures
(including prorating in the event of oversubscription) set forth in this
Indenture. If the aggregate purchase price of Notes tendered pursuant to
such offer is less than the Net Available Cash allotted to the purchase
thereof, the Company will be required to apply the remaining Net Available
Cash in accordance with clause (2)(C) and, if applicable, clause (D) above.
The Company shall not be required to make such an offer to purchase Notes
pursuant to this Section 4.11 if the Net Available Cash available therefor
is less than $10 million (which lesser amount shall be carried forward for
purposes of determining whether such an offer is required with respect to
any subsequent Asset Disposition).
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to
this Section 4.11. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.11, the
Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under Section 4.11
by virtue of such conflict and compliance.
Section 4.12. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not permit any of the Subsidiaries
to, except as otherwise expressly permitted herein, do any of the following
(each, an "Affiliate Transaction"):
(a) make any Investment in an Affiliate of the Company which is
not a Subsidiary Guarantor;
(b) transfer, sell, lease, assign or otherwise dispose of any
asset to any Affiliate of the Company which is not a Subsidiary Guarantor;
(c) merge into or consolidate with or purchase or acquire assets
from any Affiliate of the Company which is not a Subsidiary Guarantor;
(d) repay any Indebtedness to any Affiliates of the Company which
is not a Subsidiary Guarantor; or
(e) enter into any other transaction, directly or indirectly, with
or for the benefit of any Affiliate of the Company which is not a
Subsidiary Guarantor (including guaranties and assumptions of obligations
of any such Affiliate);
except for (i) transactions in the ordinary course of business on a basis no
less favorable to the Company or no more favorable to such Affiliate as would
be obtained in a comparable arm's-length transaction with a Person not an
Affiliate, (ii) any Restricted Payment permitted to be made or any Permitted
Investment (other than a Permitted Investment described in clause 1, 6 or 9 of
the definition thereof) not prohibited pursuant to Section 4.08 hereof and
(iii) payment of salaries and other compensation to, or the making of loans or
advances to, officers, directors of the Company or any of the Subsidiaries in
the ordinary course of business.
Section 4.13. Liens.
-----
The Company shall not, and shall not permit any of its
Subsidiaries to Incur or become effective any Lien upon any of its property
or assets, now owned or hereafter acquired, other than Permitted Liens.
Section 4.14. Corporate Existence.
-------------------
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (1)
its corporate existence, and the corporate, partnership or other existence
of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of
the Company or any such Subsidiary and (2) the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries;
provided, however, that the Company shall not be required to preserve any
such right, license or franchise, or the corporate, partnership or other
existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not adverse in any material respect to
the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer (a "Change of Control Offer") to each Holder to repurchase
all or, if elected by such Holder, any part selected by such Holder (equal
to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest, due on the relevant interest payment date) (the "Change
of Control Payment").
Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and that such
Holder has the right to require the Company to purchase such
Holder's Notes at a purchase price in cash equal to 101% of the
principal amount of Notes repurchased plus accrued and unpaid
interest (if any) to the date of purchase (subject to the right
of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date); (2) the
material circumstances and facts regarding such Change of
Control (including, without limitation, information with
respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of Control);
(3) the repurchase date, which shall be no earlier than 30 days
nor later than 60 days from the date such notice is mailed (the
"Change of Control Payment Date"); (4) that any Note not
tendered will continue to accrue interest; (5) that, unless the
Company defaults in the payment of the Change of Control
Payment, all Notes accepted for payment pursuant to the Change
of Control Offer shall cease to accrue interest after the
Change of Control Payment Date; (6) that Holders electing to
have any Notes purchased pursuant to a Change of Control Offer
will be required to surrender the Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the
Notes completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the third
Business Day preceding the Change of Control Payment Date; (7)
that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the close of business on
the second Business Day preceding the Change of Control Payment
Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of
Notes delivered for purchase, and a statement that such Xxxxxx
is withdrawing his election to have the Notes purchased; and
(8) that Holders whose Notes are being purchased only in part
will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an
integral multiple thereof..
(b) On the Change of Control Payment Date, the Company shall, to
the extent lawful, (1) accept for payment all Notes or portions thereof
properly tendered pursuant to the Change of Control Offer, (2) deposit with
the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered payment in an amount
equal to the purchase price for the Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered by such Holder, if any; provided, that each such new
Note shall be in a principal amount of $1,000 or an integral multiple
thereof. The Company shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control
Payment Date.
The Company shall comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to
this Section 4.15. To the extent that the provisions of any securities laws
or regulations conflict with the provisions of this Section 4.15, the
Company shall comply with the applicable securities laws and regulations
and shall not be deemed to have breached its obligations under this Section
4.15 by virtue of such conflict and compliance.
Section 4.16. Sale of the Texas City Facilities.
---------------------------------
The Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, consummate a sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or other
dispositions) of the Texas City Facilities or the Capital Stock of the
Texas City Facilities Subsidiary (each, a "Sale of the Texas City
Facilities"), except in compliance with the following provisions:
(1) The Net Available Cash or Net Cash Proceeds, as
applicable, from such transaction must be sufficient at the
proposed repurchase date to purchase all of the Notes at a
purchase price in cash equal to 101% of the principal amount
thereof, plus accrued and unpaid interest thereon to the
repurchase date, according to the procedures set forth in
Section 4.15.
(2) An amount equal to any Net Available Cash or Net
Cash Proceeds, as applicable, from the Sale of the Texas City
Facilities shall, concurrently with the closing of such sale,
be deposited with the Collateral Agent, who will hold such
amount pending its application to satisfy the obligations of
the Company to purchase the Notes. To the extent that funds
remain after the purchase of the Notes, such excess amounts and
any interest thereon, if any, shall be returned to the Company.
Pending such application of such amounts or return of excess
amounts to the Company, the Collateral Agent shall invest such
amounts at the Company's direction in Temporary Cash
Investments, provided that the maturity of those investments is
prior to the repurchase date of the Notes.
Section 4.17. Limitation on the Sale or Issuance of Capital Stock
of Subsidiaries.
---------------------------------------------------
The Company shall not sell or otherwise dispose of any
shares of Capital Stock of a Subsidiary, and shall not permit any Subsidiary,
directly or indirectly, to issue or sell or otherwise dispose of any shares of
its Capital Stock except:
(1) to the Company or a Wholly Owned Subsidiary;
(2) if, immediately after giving effect to such issuance,
sale or other disposition, such Subsidiary remains a Subsidiary;
or
(3) if all shares of Capital Stock of such Subsidiary are
sold or otherwise disposed of; provided, however, that in
connection with any sale pursuant to this clause (3), the Company
may retain no more than 10% of the outstanding Capital Stock of
the Subsidiary being sold as a portion of the purchase price in
connection with such sale. In connection with any such sale or
disposition of Capital Stock, the Company or any such Subsidiary
shall comply with the provisions of Section 4.11, 4.15 or 4.16, as
applicable.
Section 4.18. INTENTIONALLY OMITTED.
---------------------
Section 4.19. Additional Subsidiaries
-----------------------
If any Subsidiary is formed or acquired after the date of this
Indenture by the Company or any of its Subsidiaries, the Company will notify
the Trustee in writing thereof not later than the fifth Business Day after the
date on which such Subsidiary is formed or acquired, and, in addition, the
Company will:
(a) cause such new Subsidiary to execute and deliver a Subsidiary
Guarantee and deliver an Opinion of Counsel, (b) cause such new Subsidiary to
become a party to each applicable Security Document in the manner provided
therein in each case not later than the fifth Business Day after the date on
which such new Subsidiary is formed or acquired, (c) cause such Subsidiary to
become a party to and be bound by the terms of this Indenture and (d) promptly
take such actions to create and perfect Liens on such Subsidiary's assets
which are of the same type as the Pledged Collateral to secure the
Obligations.
Section 4.20. Capital Expenditures.
--------------------
Other than Required Environmental Capital Expenditures, the Company
shall not permit the aggregate amount of Capital Expenditures made by the
Company and its Subsidiaries in any [Fiscal Year] [period] to exceed the
amount set forth below opposite such [Fiscal Year] [period]:
[Fiscal Year] [Period] Amount(1)
---------------------- --------
____________
(1) Insert amount listed for such [Fiscal Year][period]in the Plan of
Reorganization Budget, plus 25%.
provided, however, that if Capital Expenditures for any [Fiscal Year] [period]
are less than the amount set forth above for such [Fiscal Year] [period], the
amount of the deficiency shall be carried forward and the amount set forth
above for the subsequent [Fiscal Year] [period] shall be increased by the
amount of the deficiency from the prior [Fiscal Year] [period].
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
----------------------------------------
The Company shall not consolidate with or merge with or into, or
convey, transfer or lease, in one transaction or a series of related
transactions, all or substantially all its assets to, any Person unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") is a Person organized and existing under the laws of the United
States or any State thereof or the District of Columbia and the Successor
Company (if not the Company) expressly assumes by a supplemental indenture,
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of the Company under this Indenture and the Notes;
(2) immediately after giving effect to such transaction (and treating
any Debt which is or becomes an obligation of the Successor Company or any
Subsidiary of the Successor Company as a result of such transaction as having
been Incurred by such Person at the time of such transaction), no Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction, the
Successor Company has Consolidated Net Worth in an amount which is not less
than the Consolidated Net Worth of the Company immediately prior to such
transaction minus any costs incurred in connection with the transaction; and
(4) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger or
transfer and such supplemental indenture (if any) comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the
assets of the Company in accordance with Section 5.01 hereof, the successor
Person formed by such consolidation or into or with which the Company is
merged or to which such sale, assignment, transfer, lease, conveyance or other
disposition is made shall succeed to, and be substituted for (so that from and
after the date of such consolidation, merger, sale, assignment, lease,
conveyance or other disposition the provisions of this Indenture referring to
the "Company" shall refer instead to the successor Person and not to the
Company), and may exercise every right and power of the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein; provided, however, that the predecessor Person shall not
be relieved from the obligation to pay the principal of and interest on the
Notes except in the case of a sale of all of the Company's assets that meets
the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" means:
(1) a default in any payment of interest on any Note when the same
becomes due and payable, and such default continues for a period of 30 days;
(2) a default in the payment of the principal of or premium on any
Note when the same becomes due and payable at its Stated Maturity, upon
redemption, upon declaration, upon required repurchase or otherwise;
(3) the failure by the Company to comply with its obligations
pursuant to Sections 4.07, 4.08, and 5.01 hereof or a default by a Subsidiary
Guarantor under any Subsidiary Guarantee;
(4) the failure by the Company to observe or perform any of its
obligations under Sections 4.11, 4.15 or 4.16 (in each case, other than a
failure to purchase Notes), or under Sections 4.03, 4.09, 4.10, 4.12 or 4.20
of this Indenture for 30 days after receipt by the Company of a written notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
(5) the failure by the Company to observe or perform any other
covenant, representation, warranty or other agreement in this Indenture or the
Notes or any Security Document for 60 days after notice to the Company by the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Notes then outstanding;
(6) a default under any mortgage, indenture or instrument (including
the Security Documents) under which there may be issued or by which there may
be secured or evidenced any Debt for money borrowed by the Company or any of
its Subsidiaries (or the payment of which is Guaranteed by the Company or any
of its Subsidiaries) whether such Debt or Guarantee now exists, or is created
after the date hereof, which default:
(a) is caused by failure to pay principal of or premium, if any, or
interest on such Debt prior to the expiration of the grace period provided in
such Debt on the date of such default ("Payment Default"); or
(b) results in the acceleration of such Debt prior to its express
maturity; and, in each case, the principal amount of any such Debt, together
with the principal amount of any other such Debt under which there has been a
Payment Default or the maturity of which has been so accelerated, aggregates
$5.0 million or more;
(7) (i) the repudiation by the Company or any Subsidiary of any of
its respective obligations under the Security Documents; (ii) the
unenforceability of any of the Security Documents against the Company or any
Subsidiary in any material respect for any reason which, in such case, shall
continue unremedied for 30 days after the earlier of the date on which (A) a
Responsible Officer of the Company becomes aware of such repudiation or
unenfoceablitity or (B) a written notice thereof shall have been given to the
Company by the Trustee or the Holders of a majority in aggregate principal
amount of the Notes then outstanding; or (iii) the loss of the perfection or
priority of any material portion of the Liens granted by the Company or a
Subsidiary pursuant to the Security Documents for any reason (other than as
permitted in this Indenture, the Security Agreement or as otherwise agreed to
by the Trustee and Holders of a majority in aggregate principal amount of the
Notes then outstanding);
(8) any final non-appealable judgment or decree not covered by
insurance or as to which the insurance carrier has denied responsibility for
the payment of money in excess of $5.0 million is rendered against the Company
or any Subsidiary and is not discharged and there is a period of 60 days
following such judgment during which such judgment or decree is not
discharged, waived or the execution thereof stayed;
(9) The Company or any of its Subsidiaries, pursuant to or within the
meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(10) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Subsidiaries in an
involuntary case;
(ii) appoints a custodian of the Company or any of its Subsidiaries for
all or substantially all of the property of the Company or any of
its Subsidiaries; or
(iii) orders the liquidation of the Company or any of its Subsidiaries;
and the order or decree remains unstayed and in effect for 60
consecutive days; or
(11) any Subsidiary disavows any of its obligations under its
Guarantee of the Notes.
Section 6.02. Acceleration.
-------------
If any Event of Default (other than an Event of Default specified in
clause (9) or (10) of Section 6.01 hereof) occurs and is continuing, the
Trustee may and, if instructed in writing by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, shall declare all
the principal of and accrued but unpaid interest on the Notes to be due and
payable immediately. Upon any such declaration, the Notes shall become due and
payable. If an Event of Default specified in clause (9) or (10) of Section
6.01 hereof occurs with respect to the Company or any of its Subsidiaries, the
principal of and accrued but unpaid interest on all the Notes shall ipso facto
become and be immediately due and payable immediately without any declaration
or other act on the part of the Trustee or any Holders of the Notes. The
Holders of a majority in aggregate principal amount of the then outstanding
Notes by written notice to the Trustee may on behalf of all of the Holders
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default
(except nonpayment of principal, interest or premium that has become due
solely because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Notes or to enforce the performance of any provision
of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
-----------------------
Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium, if any, or interest on, the Notes
(including in connection with an offer to purchase) (provided, however, that
the Holders of a majority in aggregate principal amount of the then
outstanding Notes may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any
such waiver, such Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.05. Control by Majority.
-------------------
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture or if, subject to Section 7.01, the
Trustee reasonably determines that such action, if taken, would be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
Section 6.06. Limitation on Suits.
-------------------
A Holder of a Note may pursue a remedy with respect to this Indenture
or the Notes only if:
(1) such Holder has previously given the Trustee notice that an Event
of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the
Notes then outstanding have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days
after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount of the Notes
then outstanding have not given the Trustee a direction inconsistent with such
request within such 60-day period. Subject to certain restrictions, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding are given 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.
A Holder of a Note may not use this Indenture to prejudice the rights
of another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal, premium, if any, and
interest on the Note, on or after the respective due dates expressed in the
Note (including in connection with an offer to purchase), or to bring suit for
the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder; provided that
a Holder shall not have the right to institute any such suit for the
enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien granted
under the Security Documents upon any property subject to such Lien.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal of, premium, if any, and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to file such proofs of claim and other
papers or documents 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 the Holders of the Notes allowed in any judicial proceedings relative to
the Company (or any other obligor upon the Notes), its creditors or its
property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article VI, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all
compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder of a Note pursuant to Section 6.07 hereof, or a suit by Holders of more
than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
------------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no
others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
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 liabilities for its own
negligent action, its own negligent failure to act, its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) 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
(iii) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to paragraphs
(a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be
under no obligation to exercise any of its rights and powers under this
Indenture at the request of any Holders, unless such Holder shall have offered
to the Trustee security and indemnity satisfactory to it against any loss,
liability or expense.
Section 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon any document reasonably
believed by it to be genuine and to have been signed or presented by the
proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection from liability
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it reasonably believes to be authorized or within
the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in this Indenture at the request or direction of any
of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes
or any other document in connection with the sale of the Notes or pursuant to
this Indenture other than its certificate of authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice
of the Default or Event of Default within 90 days after it occurs. Except in
the case of a Default or Event of Default in payment of principal of, premium,
if any, or interest on any Note, the Trustee may withhold the notice if and so
long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
------------------------------------------
Within 60 days after each December __ beginning with December __,
2003, and for so long as Notes remain outstanding, the Trustee shall mail to
the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the Commission and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
Trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with
the acceptance or administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. Failure by
the Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder except, solely as it pertains to such claim, to the
extent that the Company may be materially prejudiced by such failure. The
Company shall defend the claim and the Trustee shall cooperate in the defense.
The Trustee may have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for any settlement
made without its consent, which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(10) or (11) hereof occurs, the expenses
and the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
Section 7.08. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company in writing. The Holders of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of at least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Xxxxxx, etc.
---------------------------------
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee; provided such corporation shall be otherwise qualified and
eligible under this Article.
Section 7.10. Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or
state authorities and that has, or is a direct or indirect subsidiary
Wholly-Owned Subsidiary of a bank holding company that has, a combined capital
and surplus of at least $100 million as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article Eight.
Section 8.02. Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes
when such payments are due, (b) the Company's obligations with respect to such
Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (d) this Article Eight. Subject to compliance with
this Article Eight, the Company may exercise its option under this Section
8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
Section 8.03. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the provisions of Sections 4.03, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19 and 4.20 hereof and
clause (3) and (4) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed 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 Sections, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section 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 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(8) hereof or Sections 6.01(10) or 6.01(11) (with respect
only to the Subsidiaries) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, U.S. Government
Obligations, or a combination thereof, in such amounts as will be sufficient,
in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on the
outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, 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 Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such Legal 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 Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes 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;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Debt all or a portion of the proceeds
of which will be used to defease the Notes pursuant to this Article Eight
concurrently with such incurrence) or insofar as Sections 6.01(10) or 6.01(11)
hereof is concerned and pertains to the Company, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Opinion of
Counsel (which may be subject to customary exceptions) to the effect that on
the 91st day following the deposit, the trust funds will not be subject to the
effect of any applicable Bankruptcy Law;
(g) 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 over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company; and
(h) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as Paying Agent) as
the Trustee may determine, to the Holders of such Notes 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.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding
Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
--------------------
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 Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall
be paid to the Company on its request or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Note shall thereafter
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), 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 or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section 8.07. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any United States
dollars or U.S. Government Obligations in accordance with Section 8.02 or 8.03
hereof, 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 Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money
held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
-----------------------------------
Notwithstanding Section 9.02 of this Indenture, the Company, the
Subsidiary Guarantors and the Trustee (or the Collateral Agent or other
representative of the Holders under any Security Document) may amend or
supplement this Indenture, the Notes (including any notation or endorsement
thereon) or any of the Security Documents or Subsidiary Guarantees without the
consent of any Holder of a Note:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(3) to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to the Holders of the Notes by a successor to the
Company or a Subsidiary Guarantor pursuant to Article 5 or Article 11 hereof;
(4) to add to the covenants of the Company and its Subsidiaries
hereunder for the benefit of the Holders of the Notes or to surrender any
right or power conferred upon the Company;
(5) to make any change that would provide any additional rights or
benefits to the Holders of the Notes;
(6) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA; or
(7) to allow any Subsidiary Guarantor to execute a supplemental
indenture with respect to the Notes.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture or Security Document, and upon receipt by the Trustee
of the documents described in Section 9.06 hereof, the Trustee shall join with
the Company and the Subsidiary Guarantors in the execution of any amended or
supplemental indenture or Security Document authorized or permitted by the
terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture or Security
Document that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
--------------------------------
Except as provided below in this Section 9.02, the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement this Indenture
(including Section 3.09, 4.11, 4.15 and 4.16 hereof), the Notes or any of the
Security Documents or Subsidiary Guarantees with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding
(including consents obtained in connection with a tender offer or exchange
offer for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07
hereof, any existing Default or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on the Notes, except a payment default resulting from an acceleration
that has been rescinded) or compliance with any provision of this Indenture,
the Notes, any Security Document or the Subsidiary Guarantees may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection with a tender
offer or exchange offer for, or purchase of, the Notes). Section 2.08 hereof
shall determine which Notes are considered to be "outstanding" for purposes of
this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or
supplemental indenture or Security Document or Subsidiary Guarantee, and upon
the filing with the Trustee of evidence satisfactory to the Trustee of the
consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee
of the documents described in Section 9.06 hereof, the Trustee shall join with
the Company in the execution of such amended or supplemental indenture or
Security Document or Subsidiary Guarantee unless such amended or supplemental
indenture directly affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture or Security Document or Subsidiary Guarantee.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02 or
Section 9.01 becomes effective, the Company shall mail to the Holders of Notes
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amended or supplemental indenture or Security Document or Subsidiary Guarantee
or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a majority
in aggregate principal amount of the Notes then outstanding may waive
compliance in a particular instance by the Company with any provision of this
Indenture, the Notes or any of the Security Documents or Subsidiary Guarantee.
However, without the consent of each Holder affected, an amendment, supplement
or waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) reduce the principal amount of or premium on Notes whose Holders
must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest,
including default interest, on any Note;
(c) reduce the principal of or premium on or extend the Stated
Maturity of any Note;
(d) alter or waive any of the provisions with respect to the
redemption or repurchase of the Notes except as provided above with respect to
Sections 3.09, 4.11, 4.15 and 4.16 hereof;
(e) make any Note payable in money other than that stated in the
Notes;
(f) impair the right of any Holder of the Notes to receive payment of
principal of, premium, if any, on and interest on such Holder's Notes on or
after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Xxxxxx's Notes;
(g) waive a Default or Event of Default in the payment of principal
of or premium, if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in aggregate
principal amount of the then outstanding Notes and a waiver of the payment
default that resulted from such acceleration);
(h) make any change in Section 6.04 or 6.07 hereof or in this
sentence;
(i) release any Subsidiary Guarantor from any of its obligations
under its Subsidiary Guarantee or this Indenture, except in accordance with
the terms of this Indenture; or
(j) deprive any of the Holders of the benefit of the Liens created by
the Security Documents except in accordance with the terms of the Security
Documents.
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the Notes shall be
set forth in a amended or supplemental indenture that complies with the TIA as
then in effect.
Section 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note
and every subsequent Holder of a Note or portion of a Note that evidences the
same debt as the consenting Xxxxxx's Note, even if notation of the consent is
not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment or supplement changes the terms of a Note, the
Trustee may require the Holder of such Note to deliver such Note to the
Trustee. The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amended or supplemental indenture or
Security Document authorized pursuant to this Article 9 if the amendment,
supplement or Security Document does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. The Company may not sign an
amendment or supplemental indenture or Security Document or Subsidiary
Guarantee unless the Board of Directors authorizes it. In executing any
amended or supplemental indenture or Security Document or Subsidiary
Guarantee, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officer's Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture or Security Document is authorized or permitted by this
Indenture.
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Security Documents.
------------------
The due and punctual payment and performance of the Obligations shall
be secured as provided in the Security Documents which the Company and all of
its Subsidiaries have entered into simultaneously with the execution of this
Indenture. Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Security Documents (including, without limitation,
the provisions providing for foreclosure and release of Pledged Collateral) as
the same may be in effect or may be amended from time to time in accordance
with its terms and authorizes and directs the Collateral Agent and the Trustee
to enter into the Security Documents and to perform its obligations and
exercise its rights thereunder in accordance therewith. The Company shall
deliver to the Trustee copies of all documents delivered to the Collateral
Agent pursuant to the Security Documents, and shall do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by
the provisions of the Security Documents, to assure and confirm to the Trustee
and the Collateral Agent the security interest in the Pledged Collateral
contemplated hereby, by the Security Documents or any part thereof, as from
time to time constituted, so as to render the same available for the security
and benefit of this Indenture and of the Notes secured hereby, according to
the intent and purposes herein expressed. The Company shall take, or shall
cause its Subsidiaries to take, upon request of the Trustee, any and all
actions reasonably required to cause the Security Documents to create and
maintain, as security for the Obligations, a valid and enforceable perfected
first priority Lien in and on all the Pledged Collateral (subject to Permitted
Liens), in favor of the Collateral Agent for the benefit of the Holders of
Notes, superior to and prior to the rights of all third Persons and subject to
no other Liens other than Permitted Liens.
Section 10.02. Recording and Opinions.
----------------------
(a) The Company shall furnish to the Trustee simultaneously with the
execution and delivery of this Indenture a letter stating that it is entitled
to rely on an Opinion of Counsel stating that in the opinion of such counsel
all action has been taken with respect to the delivery of all financing
statements or other instruments necessary to make effective the Liens intended
to be created by the Security Documents.
(b) The Company shall furnish to the Collateral Agent and the Trustee
on September 30 in each year beginning with September 30, 2003 an Opinion of
Counsel, dated as of such date, either (i) (A) stating that, in the opinion of
such counsel, action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as is necessary to maintain the Lien of
the Security Documents and reciting with respect to the security interests in
the Pledged Collateral the details of such action or referring to prior
Opinions of Counsel in which such details are given, (B) stating that, based
on relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully
to preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the Collateral
Agent and the Trustee hereunder and under the Security Documents with respect
to the security interests in the Pledged Collateral, or (ii) stating that, in
the opinion of such counsel, no such action is necessary to maintain such Lien
and assignment.
(c) The Company shall otherwise comply with the provisions of TIA
Section 314(b).
Section 10.03. Release of Pledged Collateral.
-----------------------------
(a) Subject to subsections (b), (c) and (d) of this Section 10.03,
Pledged Collateral may be released from the Lien and security interest created
by the Security Documents at any time or from time to time in accordance with
the provisions of the Security Documents or as provided hereby. In addition,
upon the request of the Company pursuant to an Officers' Certificate
certifying that all conditions precedent hereunder have been met and stating
whether or not such release is in connection with an Asset Disposition or a
Sale of the Texas City Facilities (at the sole cost and expense of the
Company) the Collateral Agent shall release (i) Pledged Collateral that is
sold, conveyed or disposed of in compliance with the provisions of this
Indenture; provided, that if such sale, conveyance or disposition constitutes
an Asset Disposition or a Sale of the Texas City Facilities, the Company shall
comply with Section 4.11 or Section 4.16, as applicable. Upon receipt of such
Officers' Certificate, the Collateral Agent shall execute, deliver or
acknowledge any necessary or proper instruments of termination, satisfaction
or release to evidence the release of any Pledged Collateral permitted to be
released pursuant to this Indenture or the Security Documents.
(b) No Pledged Collateral shall be released from the Lien and
security interest created by the Security Documents pursuant to the provisions
of the Security Documents unless there shall have been delivered to the
Collateral Agent the certificate required by this Section 10.03.
(c) No release of Pledged Collateral pursuant to the provisions of
the Security Documents shall be effective as against the Holders of Notes if
such release shall have been given at any time when a Default or Event of
Default shall have occurred and be continuing and the maturity of the Notes
shall have been accelerated (whether by declaration or otherwise) and the
Trustee shall have delivered a notice of acceleration to the Collateral Agent.
(d) The release of any Pledged Collateral from the terms of this
Indenture and the Security Documents shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Pledged Collateral is released pursuant to the terms of the
Security Documents. To the extent applicable, the Company shall cause TIA
Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the Lien and security interest of the
Security Documents and relating to the substitution therefor of any property
or securities to be subjected to the Lien and security interest of the
Security Documents, to be complied with. Any certificate or opinion required
by TIA Section 314(d) may be made by an Officer of the Company except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by
an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Trustee and the
Collateral Agent in the exercise of reasonable care.
Section 10.04. Certificates of the Company.
---------------------------
The Company shall furnish to the Trustee and the Collateral Agent,
prior to each proposed release of Pledged Collateral pursuant to the Security
Documents, (i) all documents required by TIA Section 314(d) and (ii) an
Opinion of Counsel, which may be rendered by internal counsel to the Company,
to the effect that such accompanying documents constitute all documents
required by TIA Section 314(d). The Trustee may, to the extent permitted by
Sections 7.01 and 7.02 hereof, accept as conclusive evidence of compliance
with the foregoing provisions the appropriate statements contained in such
documents and such Opinion of Counsel.
Section 10.05. Certificates of the Trustee.
---------------------------
In the event that the Company wishes to obtain a release of any
Pledged Collateral in accordance with the Security Documents and has delivered
the certificates and documents required by the Security Documents and Sections
10.02 and 10.03 hereof, the Trustee shall determine whether it has received
all documentation required by TIA Section 314(d) in connection with such
release and, based on such determination and the Opinion of Counsel delivered
pursuant to Section 10.02(b), shall deliver a certificate to the Collateral
Agent setting forth such determination.
Section 10.06. Attornment.
----------
To the extent expressly required under the leases in existence on the
Issue Date, the Trustee, on behalf of the Holders of the Notes, hereby
acknowledges and agrees that the Liens granted pursuant to the Security
Documents are subject to the rights of certain lessees under such leases (and
expressly required thereunder) and will be subject to the rights of lessees
under any leases entered into by the Company or any Subsidiary Guarantor after
the date hereof which are permitted pursuant to this Indenture (collectively,
the "Leases") subject to the express rights contained in the applicable lease.
The rights of the tenants under the leases to the leased premises shall not be
unreasonably affected by the exercise by the Trustee (or the Collateral Agent
or other representative of the Holders under any Security Document) of any of
their rights under this Indenture or any of the Security Documents, nor shall
any such tenant be in any other way deprived of its rights under the
applicable lease except in accordance with the terms of such lease. In the
event that the Trustee (or any Collateral Agent or other representative of the
Holders under any Security Document) succeeds to the interest of the Company
or any Subsidiary Guarantor under a Lease, such Lease shall not be terminated
or affected thereby except as set forth herein or therein, and any sale of the
applicable leased premises by the Trustee (or the Collateral Agent or other
representative of the Holders under any Security Document) under or pursuant
to the judgment of any court in an action to enforce the remedies provided for
in the Indenture or any of the Security Documents shall be made subject to
such Lease and the rights of such tenant expressly set forth thereunder. If
the Trustee (or the Collateral Agent or other representative of the Holders
under any Security Document) succeeds to the interests of the Company or a
Subsidiary Guarantor in and to the applicable leased premises or under such
lease or enters into possession of such leased premises, the Trustee or such
Collateral Agent or other representative and such tenants shall be bound to
each other under all of the express terms, covenants and conditions of such
lease, as if the Trustee or such Collateral Agent or other representative was
originally the Company or such Subsidiary Guarantor as lessor thereunder.
Section 10.07. Authorization of Actions to Be Taken by the
Trustee Under the Security Documents.
-------------------------------------------
Subject to the provisions of Section 7.01 and 7.02 hereof, the
Trustee may, in its sole discretion and without the consent of the Holders of
Notes, direct, on behalf of the Holders of Notes, the Collateral Agent to take
all actions it deems necessary or appropriate in order to (a) enforce any of
the terms of the Security Documents and (b) collect and receive any and all
amounts payable in respect of the Obligations. The Trustee shall have power to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Pledged Collateral by any acts that may be
unlawful or in violation of the Security Documents or this Indenture, and such
suits and proceedings as the Trustee may deem expedient to preserve or protect
its interests and the interests of the Holders of Notes in the Pledged
Collateral (including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other
governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial
to the interests of the Holders of Notes or of the Trustee).
Section 10.08. Authorization of Receipt of Funds by the
TrusteeUnder the Security Documents.
----------------------------------------
The Trustee is authorized to receive any funds for the benefit of the
Holders of Notes distributed under the Security Documents, and to make further
distributions of such funds to the Holders of Notes according to the
provisions of this Indenture.
Section 10.09. Termination of Security Interest.
--------------------------------
Upon the payment in full of all Obligations, or upon Legal
Defeasance, the Trustee shall, at the request of the Company, deliver a
certificate to the Collateral Agent stating that such Obligations have been
paid in full, and instruct the Collateral Agent to release the Liens pursuant
to this Indenture and the Security Documents to the extent securing the
Obligations.
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. Subsidiary Guarantees.
---------------------
Subject to this Article 11, each of the Subsidiary Guarantors hereby,
jointly and severally, absolutely, unconditionally and irrevocably guarantees
to each Holder of a Note authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Notes or the obligations of the Company
hereunder or thereunder, that: (a) the principal of, premium, if any, and
interest on the Notes will be promptly paid in full when due, whether on an
Interest Payment Date (as defined in the Notes), at maturity, by acceleration,
repurchase, prepayment, redemption or otherwise, and interest on the overdue
principal of and interest on the Notes, if any, if lawful, and all other
Obligations of the Company will be promptly paid in full and performed, all in
accordance with the terms hereof, the Notes and the Security Documents; and
(b) in case of any extension of time of payment or renewal of any Notes or any
of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise. Failing payment when due of any
amount so guaranteed or any performance so guaranteed for whatever reason, the
Subsidiary Guarantors shall be jointly and severally obligated to pay or
perform the same immediately. Notwithstanding any notice given by the Company
pursuant to the second paragraph of Section 4.01 as to payment of interest on
any Interest Payment Date in Additional Notes, if the Company fails timely to
pay such interest, the Subsidiary Guarantors shall nonetheless be jointly and
severally obligated to pay such interest immediately in cash.
Each Subsidiary Guarantor agrees that this is a guarantee of payment
and not a guarantee of collection.
Each Subsidiary Guarantor hereby agrees that its obligations with
regard to this Subsidiary Guarantee shall be joint and several, absolute,
unconditional and irrevocable, irrespective of the validity or enforceability
of the Notes or the obligations of the Company under this Indenture, the
absence of any action to enforce the same, the recovery of any judgment
against the Company or any other obligor with respect to this Indenture, the
Notes or the Obligations of the Company under this Indenture or the Notes, any
action to enforce the same or any other circumstances (other than complete
performance) which might otherwise constitute a legal or equitable discharge
or defense of a guarantor. Each Subsidiary Guarantor further, to the extent
permitted by applicable law, irrevocably waives and relinquishes all claims,
rights and remedies accorded by applicable law to guarantors and agrees, to
the extent permitted by applicable law, not to assert or take advantage of any
such claims, rights or remedies, including but not limited to: (a) any right
to require any of the Trustee or the Holders (each a "Benefited Party"), as a
condition of payment or performance by such Subsidiary Guarantor, to (i)
proceed against the Company, any other guarantor (including any other
Subsidiary Guarantor) of the Obligations under this Indenture and the Notes or
any other Person, (ii) proceed against or exhaust any security held from the
Company, any such other guarantor or any other Person, (iii) proceed against
or have resort to any balance of any deposit account or credit on the books of
any Benefited Party in favor of the Company or any other Person, or (iv)
pursue any other remedy in the power of any Benefited Party whatsoever; (b)
any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of the Company including any defense based on or
arising out of the lack of validity or the unenforceability of the Obligations
under this Indenture and the Notes or any agreement or instrument relating
thereto or by reason of the cessation of the liability of the Company from any
cause other than payment in full of the Obligations under this Indenture and
the Notes; (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal; (d) any defense
based upon any Benefited Party's errors or omissions in the administration of
the Obligations under this Indenture and the Notes, except behavior which
amounts to bad faith; (e)(i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms of the Subsidiary
Guarantees and any legal or equitable discharge of such Subsidiary Guarantor's
obligations hereunder, (ii) the benefit of any statute of limitations
affecting such Subsidiary Guarantor's liability hereunder or the enforcement
hereof, (iii) any rights to set-offs, recoupments and counterclaims and (iv)
promptness, diligence and any requirement that any Benefited Party protect,
secure, perfect or insure any security interest or Lien on any property
subject thereto; (f) notices, demands, presentations, protests, notices of
protest, notices of dishonor and notices of any action or inaction, including
acceptance of the Subsidiary Guarantees, notices of default under this
Indenture or the Notes or any agreement or instrument related thereto, notices
of any renewal, extension or modification of the Obligations under this
Indenture or the Notes or any agreement related thereto, and notices of any
extension of credit to the Company and any right to consent to any thereof;
(g) to the extent permitted under applicable law, the benefits of any "One
Action" rule and (h) any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms of the Subsidiary Guarantees.
Each Subsidiary Guarantor hereby covenants that its Subsidiary Guarantee shall
not be discharged except by complete performance of the obligations contained
in the Notes and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Subsidiary Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company
or the Subsidiary Guarantors, any amount paid by either the Company or the
Subsidiary Guarantors to the Trustee or such Holder, this Subsidiary
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Subsidiary Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Subsidiary Guarantor further agrees that, as between the Subsidiary
Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (x) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 hereof for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any declaration of acceleration of such obligations as provided in
Article 6 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Subsidiary Guarantors for the purpose
of this Subsidiary Guarantee. The Subsidiary Guarantors shall have the right
to seek contribution from any non-paying Subsidiary Guarantor so long as the
exercise of such right does not impair the rights of the Holders under the
Subsidiary Guarantee.
Section 11.02. Limitation on Subsidiary Guarantor Liability.
--------------------------------------------
Each Subsidiary Guarantor, and by its acceptance of Notes, each
Holder, hereby confirms that it is the intention of all such parties that the
Subsidiary Guarantee of such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any Subsidiary Guarantee. To effectuate
the foregoing intention, the Trustee, the Holders and the Subsidiary
Guarantors hereby irrevocably agree that the obligations of such Subsidiary
Guarantor will, after giving effect to such maximum amount and all other
contingent and fixed liabilities of such Subsidiary Guarantor that are
relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 11, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03. Execution and Delivery of Subsidiary Guarantee.
----------------------------------------------
To evidence its Subsidiary Guarantee set forth in Section 11.01, each
Subsidiary Guarantor hereby agrees that a notation of such Subsidiary
Guarantee substantially in the form included in Exhibit B shall be endorsed by
an Officer of such Subsidiary Guarantor on each Note authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf
of such Subsidiary Guarantor by its President or one of its Vice Presidents.
Each Subsidiary Guarantor hereby agrees that its Subsidiary Guarantee
set forth in Section 11.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on the
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee
set forth in this Indenture on behalf of the Subsidiary Guarantors.
Section 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
--------------------------------------------------------------
Except as otherwise provided in Section 11.05, no Subsidiary
Guarantor may sell or otherwise dispose of all or substantially all of its
assets to, or consolidate with or merge with or into (whether or not such
Subsidiary Guarantor is the surviving Person) another Person, other than the
Company or another Subsidiary Guarantor, unless immediately after giving
effect to such transaction, no Default or Event of Default exists and the
following conditions have been satisfied:
(a) subject to Section 11.05 hereof, the Person acquiring the
property in any such sale or disposition or the Person formed by or surviving
any such consolidation or merger assumes all the obligations of that
Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee
pursuant to a supplemental indenture and appropriate collateral documents
satisfactory to the Trustee; or
(b) if applicable, the Net Available Cash from such sale or other
disposition is applied in accordance with Section 4.11 hereof; or
(c) if applicable, that transaction is made in accordance with the
terms of Section 4.16 hereof.
In case of any such consolidation, merger, sale or conveyance (other
than pursuant to Section 4.16) and upon the assumption by the successor
Person, by supplemental indenture, executed and delivered to the Trustee and
satisfactory in form to the Trustee, of the Subsidiary Guarantee endorsed upon
the Notes and the due and punctual performance of all of the covenants and
conditions of this Indenture to be performed by the Subsidiary Guarantor, such
successor Person shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor Person thereupon may cause to be signed any or all
of the Subsidiary Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Subsidiary Guarantees so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, nothing contained in
this Indenture or in any of the Notes shall prevent any consolidation or
merger of a Subsidiary Guarantor with or into the Company or another
Subsidiary Guarantor, or shall prevent any sale or conveyance of the property
of a Subsidiary Guarantor as an entirety or substantially as an entirety to
the Company or another Subsidiary Guarantor.
Section 11.05. Releases Following Sale of Assets.
---------------------------------
The Subsidiary Guarantee of a Subsidiary Guarantor will be
released:
(1) with respect to any Subsidiary Guarantor other than the Texas
City Facilities Subsidiary, in connection with any sale or other disposition
of all or substantially all of the assets of that Subsidiary Guarantor
(including by way of merger or consolidation) or any sale or other disposition
of all of the Capital Stock of that Subsidiary Guarantor to a Person that is
not (either before or after giving effect to such transaction) a Subsidiary
Guarantor or the Company, provided, that the Company must apply the Net
Available Cash or the Net Cash Proceeds, as applicable, from such sale or
other disposition in accordance with the provisions of Section 4.11 hereof;
(2) with respect to the Texas City Facilities Subsidiary, in
connection with the Sale of the Texas City Facilities, provided, that the
Company must apply the Net Available Cash or the Net Cash Proceeds, as
applicable, from such sale or other disposition in accordance with the
provisions of Section 4.16 hereof;
Upon delivery by the Company to the Trustee of an Officers'
Certificate and an Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the provisions of this
Indenture, including without limitation Sections 4.11 and 4.16 hereof, the
Trustee shall execute any documents reasonably required in order to evidence
the release of any Subsidiary Guarantor from its obligations under its
Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of
and premium, if any, and interest on the Notes and for the other Obligations
of the Company and the other Subsidiary Guarantors under the Notes and this
Indenture as provided in this Article 11.
ARTICLE 12
HOLDERS' MEETINGS
Section 12.01. Purposes of Meetings.
--------------------
A meeting of the Holders may be called at any time from time to time
pursuant to this Article 12 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any Default
hereunder and its consequences, or to take any other action authorized to be
taken by the Holders pursuant to Article 9;
(b) to remove the Trustee and appoint a successor trustee pursuant to
Article 7;
(c) to consent to the execution of an indenture supplemental hereto
pursuant to Section 9.02;
(d) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the outstanding
Notes under any other provision of this Indenture or under applicable law; and
(e) to take any action required, authorized or permitted to be taken
by the Holders under the Amended and Restated Certificate of Incorporation of
the Company.
Section 12.02. Place of Meetings.
------------------
Meetings of the Holders may be held at such place or places as the
Trustee or, in case of its failure to act, the Company, shall from time to
time determine.
Section 12.03. Call and Notice of Meetings.
---------------------------
(a) The Trustee may at any time (upon not less than 20 or more than
90 days' notice) call a meeting of the Holders to be held at such time and at
such place in the City of New York, New York or in such other city as
determined by the Trustee pursuant to Section 12.02. Notice of every meeting
of the Holders, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be mailed
to each Holder and published in the manner contemplated by Section 13.02.
(b) In case at any time the Company, pursuant to a resolution of the
Board of Directors, or the Holders of at least 10% in aggregate principal
amount of the Notes then outstanding, shall have requested the Trustee to call
a meeting of the Holders, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first giving of the notice of such meeting within 20 days
after receipt of such request, then the Company or the Holders of Notes in the
amount above specified may determine the time and the place in The City of New
York, New York or in such other city as determined by the Company or the
Holders pursuant to Section 12.02 for such meeting and may call such meeting
to take any action authorized in Section 12.01 by giving notice thereof as
provided in Section 12.03(a).
Section 12.04. Action Without Meeting.
----------------------
Any action required or permitted to be taken by the Holders may be
taken without a meeting if consented to in writing by Holders of the aggregate
principal amount of the Notes then outstanding that would be necessary to
authorize or take such action at a meeting at which all Holders having a right
to vote thereon were present and voted.
Section 12.05. Voting at Meetings.
------------------
To be entitled to vote at any meeting of the Holders, a Person shall
be (i) a Holder or (ii) a Person appointed by an instrument in writing as
proxy for a Holder or Holders by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of the Holders
shall be the Person so entitled to vote at such meeting and their counsel and
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
Section 12.06. Voting Rights, Conduct and Adjournment.
--------------------------------------
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of the Holders in regard to proof of the holding of Notes and of the
appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 2.03 and the appointment of any
proxy shall be proved in such manner as is deemed appropriate by the Trustee
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any bank, banker or trust company customarily authorized to
certify to the holding of a note such as a Global Note.
(b) At any meeting of the Holders, the presence of Persons holding or
representing Notes in an aggregate principal amount sufficient under the
appropriate provision of this Indenture to take action upon the business for
the transaction of which such meeting was called shall constitute a quorum.
Subject to any required aggregate principal amount of Notes required for the
taking of any action pursuant to Article 9, in no event shall less than a
majority of the votes given by Persons holding or representing Notes at any
meeting of the Holders be sufficient to approve an action. Any meeting of the
Holders duly called pursuant to Section 12.03 may be adjourned from time to
time by vote of the Holders (or proxies for the Holders) of a majority of the
Notes represented at the meeting and entitled to vote, whether or not a quorum
shall be present; and the meeting may be held as so adjourned without further
notice. No action at a meeting of the Holders shall be effective unless
approved by Persons holding or representing Notes in the aggregate principal
amount required by the provision of this Indenture pursuant to which such
action is being taken.
(c) At any meeting of the Holders, each Holder or proxy shall be
entitled to one vote for each $1,000 aggregate principal amount of outstanding
Notes held or represented.
Section 12.07. Revocation of Consent by the Holders.
------------------------------------
At any time prior to (but not after) the evidencing to the Trustee of
the taking of any action at a meeting of the Holders by the Holders of the
percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note the serial
number of which is included in the Notes the Holders of which have consented
to such action may, by filing written notice with the Trustee at its principal
corporate trust office and upon proof of holding as provided herein, revoke
such consent so far as concerns such Note. Except as aforesaid, any such
consent given by the Holder of any Note shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Note and of any
Note issued in exchange therefor, in lieu thereof or upon transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
such Note. Any action taken by the Holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and
the Holders of all the Notes.
Section 12.08. No Delay of Rights by Meeting.
-----------------------------
Nothing in this Article 12 contained shall be deemed or construed to
authorize or permit, by reason of any call of a meeting of the Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to any Holder under any of the provisions of this
Indenture or the Notes.
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by TIA Section 318(c), the imposed duties shall
control.
Section 13.02. Notices.
-------
Any notice or communication by the Company, any Subsidiary Guarantor
or the Trustee to the others is duly given if in writing and delivered in
Person or mailed by first class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Company and/or any Subsidiary Guarantor:
Sterling Chemicals, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Four Times Square
New York, New York 10036-6522
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
If to the Trustee:
National City Bank
Corporate Trust Department
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxx
The Company, any Subsidiary Guarantor or the Trustee, by notice to
the others may designate additional or different addresses for subsequent
notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA Section 313(c), to the extent required
by the TIA. Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 13.03. Communication by Holders of Notes with Other Holders of Notes.
-------------------------------------------------------------
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, any Agent and any other Person shall have the protection
of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied and that such action is
permitted under this Indenture.
Section 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(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 such Person, he or she has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
Section 13.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 13.07. No Personal Liability of Directors,
Officers, Employees and Stockholders.
------------------------------------
No past, present or future director, officer, employee, incorporator
or stockholder of the Company or any Subsidiary Guarantor, as such, shall have
any liability for any obligations of the Company or such Subsidiary Guarantor
under the Notes, the Subsidiary Guarantees, this Indenture or the Security
Documents or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.
Section 13.08. Governing Law.
-------------
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES AND THE SECURITY
DOCUMENTS WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD
BE REQUIRED THEREBY.
Section 13.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
Section 13.10. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its permitted successors. All agreements of the Trustee in this Indenture
shall bind its permitted successors. All agreements of each Subsidiary
Guarantor in this Indenture shall bind its permitted successors, except as
otherwise provided in Section 11.05. Except as expressly contemplated hereby,
neither the Company nor any Subsidiary Guarantor shall assign or otherwise
transfer its rights or obligations under this Indenture, the Notes, the
Subsidiary Guarantees or the Security Documents.
Section 13.11. Severability.
------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 13.12. Counterpart Originals.
---------------------
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 13.13. Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
SIGNATURES
STERLING CHEMICALS, INC.
By: ____________________________
Name:
Title:
STERLING CHEMICALS ENERGY, INC.
By: ____________________________
Name:
Title:
NATIONAL CITY BANK
By: ____________________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
[Back of Note]
10% Senior Secured Notes due 200[7]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless otherwise
indicated.
1. INTEREST. Sterling Chemicals, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
10% per annum from [December, 2002] until maturity. The Company will pay
interest semi-annually in arrears on [June ___] and [December ___ ] of each
year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is
no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be [June ___, 2003]. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and premium, if any, from time to time on demand at the
rate then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods), from time to time
on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the ____________ or ____________ next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
will be payable as to principal and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest and premium,
if any, on all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent;
provided, however, that interest may be paid through the issuance of
Additional Notes as provided in the Indenture. Such payment shall be 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, unless payment is made
through the issuance of Additional Notes as provided in the Indenture.
3. PAYING AGENT AND REGISTRAR. Initially, National City Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE AND SECURITY DOCUMENTS. The Company issued the Notes
under an Indenture dated as of [December ___, 2002] (the "Indenture") among
the Company, the Subsidiary Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx.
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are secured obligations of the Company limited to $___ million in
aggregate principal amount plus the amount of any Additional Notes issued as
provided in the Indenture. The Notes are secured by pledged collateral
pursuant to the Security Documents referred to in the Indenture.
5. OPTIONAL REDEMPTION.
The Notes may be redeemed, in whole or in part, at the election of
the Company at any time on not less than 30 days' prior notice at a redemption
price equal to 100% of the principal amount plus accrued and unpaid interest
to and including the redemption date.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer'') to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of purchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset
Dispositions, when the aggregate amount of Net Available Cash remaining after
application in accordance with the provisions of Section 4.11 of the Indenture
exceeds $10 million, the Company shall commence an offer to all Holders of
Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes that may be purchased out of
the balance of such Net Available Cash at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Net Available Cash available, the Company (or such Subsidiary) must
use such deficiency in the manner specified in Section 4.11 of the Indenture.
If the aggregate principal amount of Notes tendered by Holders thereof exceeds
the amount of Net Available Cash available, the Trustee shall select the Notes
to be purchased on a pro rata basis based on the principal amount of the Notes
tendered. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes.
(c) If the Company or any Subsidiary consummates a Sale of the Texas
Facilities, the Company must apply an amount equal to any Net Available Cash
or Net Cash Proceeds, as applicable, from such transaction to offer to
purchase outstanding Notes at a repurchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon,
if any, to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), according to the procedures set forth in Section 4.15 of the
Indenture. If the aggregate principal amount of Notes tendered in such offer
to repurchase exceeds the amount of any Net Available Cash or Net Cash
Proceeds, as applicable, from such transaction, the Trustee shall select the
Notes to be repurchased on a pro rata basis based upon the principal amount of
Notes tendered.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes
or portions thereof called for redemption, unless the Company defaults in the
payment of the redemption price.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Subsidiary Guarantees, the Notes or any of the Security
Documents may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding,
and any existing default or compliance with any provision of the Indenture,
the Subsidiary Guarantees, the Security Documents or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding. Without the consent of any Holder of a Note, the
Indenture, the Subsidiary Guarantees, the Security Documents or the Notes may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to Holders of the Notes by a successor to the Company
or such Subsidiary Guarantor pursuant to Article 5 or Article 11 of the
Indenture, to add to the covenants of the Company and its Subsidiaries under
the Indenture for the benefit of the Holders of the Notes or to surrender any
right or power conferred upon the Company, to make any change that would
provide any additional rights or benefits to the Holders of the Notes, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, or to allow
any Subsidiary Guarantor to execute a supplemental indenture to the Indenture
and an endorsement on the Notes evidencing a Subsidiary Guarantee with respect
to the Notes.
12. DEFAULTS AND REMEDIES. Events of Default are: (i) a default in
any payment of interest on any Note when the same becomes due and payable,
which default continues for a period of 30 days; (ii) a default in payment of
the principal of or premium on any Note when the same becomes due and payable
at its Stated Maturity, upon redemption, upon declaration, upon required
repurchase or otherwise; (iii) the failure by the Company to comply with its
obligations pursuant to Sections 4.07, 4.08 and 5.01 of the Indenture or a
default by a Subsidiary Guarantor under any Subsidiary Guarantee; (iv) failure
by the Company to observe or perform any of its obligations pursuant to
Sections 4.11, 4.15 or 4.16 (in each case, other than a failure to purchase
Notes), or pursuant to Sections 4.03, 4.09, 4.10, 4.12 or 4.20 of the
Indenture for 30 days after receipt by the Company of a written notice sent by
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding; (v) a failure by the Company to observe or perform
any other covenant, representation, warranty or other agreement in the
Indenture, the Notes or any Security Document for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding; (vi) a default under certain other
agreements relating to Debt of the Company which default results in the
acceleration of such Debt prior to its express maturity; (vii) a repudiation
by the Company or any Subsidiary of any of its obligations under the Security
Documents or the unenforceability of any of the Security Documents against the
Company or any Subsidiary in any material respect for any reason which, in
each case, shall continue unremedied for 30 days after the earlier of the date
on which (A) a Responsible Officer of the Company becomes aware of such
failure or (B) a written notice thereof shall have been given to the Company
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding or the loss of the perfection or priority of any
material portion of the Liens granted by the Company or a Subsidiary pursuant
to the Security Documents for any reason; (viii) certain final judgments for
the payment of money that remain undischarged for a period of 60 days; (ix)
certain events of bankruptcy or insolvency with respect to the Company or any
of its Subsidiaries; and (x) a disavowal by any Subsidiary of its obligations
under its Subsidiary Guarantee. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable. Notwithstanding the foregoing, in the case of an Event of Default
arising from certain events of bankruptcy or insolvency, all outstanding Notes
will become due and payable without further action or notice. Holders may not
enforce the Indenture or the Notes except as provided in the Indenture.
Subject to certain limitations, Holders of a majority in aggregate principal
amount of the Notes then outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Holders of the Notes notice
of any continuing Default or Event of Default (except a Default or Event of
Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture except a
continuing Default or Event of Default in the payment of interest on, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company
is required upon becoming aware of any Default or Event of Default, to deliver
to the Trustee a statement specifying such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in an y notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES, WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Sterling Chemicals, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: ________________________________
(Insert assignee' legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _____________________
Your Signature: ________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: __________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11, 4.15 or 4.16 of the Indenture, check the appropriate
box below:
|_| Section 4.11 |_| Section 4.15
|_| Section 4.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11, 4.15 or 4.16 of the Indenture, state the
amount you elect to have purchased:
$_____________________
Date: _____________________
Your Signature: ________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.____________________
Signature Guarantee*: __________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Xxxxxx
Xxxxxx of decrease Amount of of Signature of
in Principal increase in this Global Note authorized
Amount Principal amount following such officer of
of of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ---------------- ---------------- ----------------- ---------------
_________________
* This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term includes
any successor Person under the Indenture), jointly and severally, absolutely,
unconditionally and irrevocably guarantees, to the extent set forth in the
Indenture and subject to the provisions in the Indenture dated as of
__________ ___, 200[2] (the "Indenture") among Sterling Chemicals, Inc., the
Subsidiary Guarantors listed on Schedule I thereto and ______________, as
trustee (the "Trustee") that: (a) the principal of, premium, if any, and
interest (including interest accruing at the rate provided for in the
documents evidencing the Notes (as defined in the Indenture) after the
commencement of any proceedings under any Bankruptcy Law (as defined in the
Indenture), whether or not an allowed claim in such proceeding ("Post-Petition
Interest")) on the Notes will be promptly paid when due, whether at maturity,
by acceleration, repurchase, prepayment, redemption or otherwise, and interest
on the overdue principal and premium, to the extent permitted by law, and all
other Obligations (as defined in the Indenture) will be promptly paid and
performed, all in accordance with the terms of the Indenture, the Notes and
the Security Documents (as defined in the Indenture) and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the
Subsidiary Guarantee and the Indenture are expressly set forth in Article 11
of the Indenture and reference is hereby made to the Indenture for the precise
terms of the Subsidiary Guarantee. Each Holder of a Note, by accepting the
same, agrees to and shall be bound by such provisions.
[NAME OF SUBSIDIARY GUARANTOR]
By: ___________________________________
Name:
Title:
