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EXHIBIT 4.3
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XXXXXX INTERNATIONAL INC.
AND
SUBSIDIARY GUARANTORS
INDENTURE
Dated as of February 13, 1998
U.S. TRUST COMPANY OF TEXAS, N.A.
Trustee
9 1/2% Senior Notes due 2008, Series A
9 1/2% Senior Notes due 2008, Series B
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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) . . . . . . . . . . . . . . . . . . . . . . . . 7.08
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 11.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02;4.03; 11.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 11.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 11.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . 2.10
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 6.02; 6.04; 9.02
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
318(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 1.02. OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . -18-
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT . . -18-
SECTION 1.04. RULES OF CONSTRUCTION . . . . . . . . . . . . . . . . -19-
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING . . . . . . . . . . . . . . . . . . . -19-
SECTION 2.02. EXECUTION AND AUTHENTICATION . . . . . . . . . . . . -20-
SECTION 2.03. REGISTRAR AND PAYING AGENT . . . . . . . . . . . . . -21-
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST . . . . . . . . . -22-
SECTION 2.05. HOLDER LISTS . . . . . . . . . . . . . . . . . . . . -22-
SECTION 2.06. TRANSFER AND EXCHANGE . . . . . . . . . . . . . . . . -22-
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES . . . . . -25-
SECTION 2.08. REPLACEMENT SECURITIES . . . . . . . . . . . . . . . -26-
SECTION 2.09. OUTSTANDING SECURITIES . . . . . . . . . . . . . . . -26-
SECTION 2.10. TREASURY SECURITIES . . . . . . . . . . . . . . . . . -26-
SECTION 2.11. TEMPORARY SECURITIES . . . . . . . . . . . . . . . . -27-
SECTION 2.12. CANCELLATION . . . . . . . . . . . . . . . . . . . . -27-
SECTION 2.13. DEFAULTED INTEREST . . . . . . . . . . . . . . . . . -27-
SECTION 2.14. PRIVATE PLACEMENT LEGEND . . . . . . . . . . . . . . -27-
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICE TO TRUSTEE . . . . . . . . . . . . . . . . . . -28-
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED . . . . . . . -28-
SECTION 3.03. NOTICE TO HOLDERS . . . . . . . . . . . . . . . . . . -28-
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION . . . . . . . . . . . -29-
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . -29-
SECTION 3.06. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . -29-
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES . . . . . . . . . . . . . . . . -30-
SECTION 4.02. SEC REPORTS . . . . . . . . . . . . . . . . . . . . . -30-
SECTION 4.03. COMPLIANCE CERTIFICATE . . . . . . . . . . . . . . . -30-
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . -31-
SECTION 4.05. CORPORATE EXISTENCE . . . . . . . . . . . . . . . . . -31-
SECTION 4.06. WAIVER OF STAY, EXTENSION OR USURY LAWS . . . . . . . -31-
SECTION 4.07. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . -32-
SECTION 4.08. MAINTENANCE OF PROPERTIES AND INSURANCE. . . . . . . -32-
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SECTION 4.09. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS. . -32-
SECTION 4.10. LIMITATION ON SUBORDINATED INDEBTEDNESS. . . . . . . -33-
SECTION 4.11. LIMITATION ON RESTRICTED PAYMENTS. . . . . . . . . . -33-
SECTION 4.12. LIMITATION ON ASSETS SALES. . . . . . . . . . . . . . -34-
SECTION 4.13. LIMITATION ON LIENS SECURING INDEBTEDNESS. . . . . . -37-
SECTION 4.14. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . -38-
SECTION 4.15. LIMITATION ON TRANSACTIONS WITH RELATED PERSONS . . . -38-
SECTION 4.16. LIMITATION ON CONDUCT OF BUSINESS . . . . . . . . . . -39-
SECTION 4.17. CHANGE OF CONTROL . . . . . . . . . . . . . . . . . . -39-
SECTION 4.18. SALE-AND-LEASEBACK TRANSACTIONS . . . . . . . . . . . -41-
SECTION 4.19. ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY OWNED
SUBSIDIARIES . . . . . . . . . . . . . . . . . . . . -41-
SECTION 4.20. REGISTRATION RIGHTS AGREEMENT . . . . . . . . . . . . -41-
SECTION 4.21. QUALIFICATION OF INDENTURE . . . . . . . . . . . . . -41-
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC . . . . . . . . . . . . . -42-
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED . . . . . . . . . . -42-
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . -43-
SECTION 6.02. ACCELERATION . . . . . . . . . . . . . . . . . . . . -44-
SECTION 6.03. OTHER REMEDIES . . . . . . . . . . . . . . . . . . . -45-
SECTION 6.04. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . -45-
SECTION 6.05. CONTROL BY MAJORITY . . . . . . . . . . . . . . . . . -45-
SECTION 6.06. LIMITATION ON REMEDIES . . . . . . . . . . . . . . . -45-
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT . . . . . . . . -46-
SECTION 6.08. COLLECTION SUIT BY TRUSTEE . . . . . . . . . . . . . -46-
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM . . . . . . . . . . -46-
SECTION 6.10. PRIORITIES . . . . . . . . . . . . . . . . . . . . . -46-
SECTION 6.11. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . -47-
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE . . . . . . . . . . . . . . . . . . -47-
SECTION 7.02. RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . . -48-
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE . . . . . . . . . . . . -49-
SECTION 7.04. TRUSTEE'S DISCLAIMER . . . . . . . . . . . . . . . . -49-
SECTION 7.05. NOTICE OF DEFAULTS . . . . . . . . . . . . . . . . . -49-
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS . . . . . . . . . . . . -49-
SECTION 7.07. COMPENSATION AND INDEMNITY. . . . . . . . . . . . . . -49-
SECTION 7.08. REPLACEMENT OF TRUSTEE . . . . . . . . . . . . . . . -50-
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC . . . . . . . . . . -51-
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION . . . . . . . . . . . . -51-
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . -51-
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ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS . . . . . . . . -51-
SECTION 8.02. APPLICATION OF TRUST MONEY . . . . . . . . . . . . . -53-
SECTION 8.03. REPAYMENT TO COMPANY . . . . . . . . . . . . . . . . -53-
SECTION 8.04. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . -53-
SECTION 8.05. SURVIVAL OF CERTAIN OBLIGATIONS . . . . . . . . . . . -54-
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS . . . . . . . . . . . . . -54-
SECTION 9.02. WITH CONSENT OF HOLDERS . . . . . . . . . . . . . . . -54-
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT . . . . . . . . . -55-
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS . . . . . . . . . . -55-
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES . . . . . . . . -56-
SECTION 9.06. TRUSTEE PROTECTED . . . . . . . . . . . . . . . . . . -56-
ARTICLE TEN
SUBSIDIARY GUARANTEES
SECTION 10.01. UNCONDITIONAL GUARANTEE . . . . . . . . . . . -56-
SECTION 10.02. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC.,
ON CERTAIN TERMS . . . . . . . . . . . . . . . -57-
SECTION 10.03. RELEASE OF A SUBSIDIARY GUARANTOR . . . . . . -58-
SECTION 10.04. LIMITATION OF SUBSIDIARY GUARANTOR'S
LIABILITY . . . . . . . . . . . . . . . . . . . -58-
SECTION 10.05. CONTRIBUTION . . . . . . . . . . . . . . . . . -59-
SECTION 10.06. EXECUTION AND DELIVERY OF SUBSIDIARY
GUARANTEE . . . . . . . . . . . . . . . . . . . -59-
SECTION 10.07. SEVERABILITY . . . . . . . . . . . . . . . . . -59-
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS . . . . . . . . . -59-
SECTION 11.02. NOTICES . . . . . . . . . . . . . . . . . . . -60-
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS . . -61-
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT . . . . . . . . . . . . . . . . . . . -61-
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION . -61-
SECTION 11.06. RULES BY TRUSTEE AND AGENTS . . . . . . . . . -62-
SECTION 11.07. LEGAL HOLIDAYS . . . . . . . . . . . . . . . . -62-
SECTION 11.08. GOVERNING LAW . . . . . . . . . . . . . . . . -62-
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS . -62-
SECTION 11.10. NO RECOURSE AGAINST OTHERS . . . . . . . . . . -62-
SECTION 11.11. SUCCESSORS . . . . . . . . . . . . . . . . . . -62-
SECTION 11.12. DUPLICATE ORIGINALS . . . . . . . . . . . . . -62-
SECTION 11.13. SEVERABILITY . . . . . . . . . . . . . . . . . -63-
SECTION 11.14. COUNTERPARTS . . . . . . . . . . . . . . . . . -63-
SIGNATURES
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EXHIBITS AND ANNEXES
EXHIBIT A Form of Security . . . . . . . . . . . . . . . . . . . . . X-0
XXXXXXX X-0 Form of Notation on Security Relating to Subsidiary
Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . A 1-1
EXHIBIT A-2 Form of Legend for Global Security . . . . . . . . . . . X-0-0
XXXXXXX X-0 Certificate to be Delivered upon Exchange or Registration
of Transfer of Securities . . . . . . . . . . . . . . . X-0-0
XXXXXXX X-0 Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors . . . . . X-0-0
XXXXXXX X-0 Form of Certificate to be Delivered in Connection with
Regulation S Transfers . . . . . . . . . . . . . . . . . B-3-1
ANNEX A Registration Rights Agreement . . . . . . . . . . . Annex 1 -1
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INDENTURE, dated as of February 13, 1998, is among XXXXXX INTERNATIONAL
INC., a Delaware corporation (the "Company"), the SUBSIDIARY GUARANTORS (as
defined hereinafter) and U.S. TRUST COMPANY OF TEXAS, N.A., as trustee (in such
capacity, the "Trustee").
The Company, the Subsidiary Guarantors and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the 9 1/2% Senior Notes due 2008, Series A (the "Series A
Securities") and the 9 1/2% Senior Notes due 2008, Series B (the "Series B
Securities", and together with the Series A Securities, the "Securities"),
without preference of one series of Securities over the other:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"1997 Indenture" means the indenture dated as of August 19, 1997, among
the Company, the Subsidiary Guarantors and the Trustee, and providing for the
issuance by the Company of senior notes in the aggregate principal amount of
$115,000,000 due 2007, as such indenture is amended, supplemented, modified and
in effect from time to time.
"1997 Guarantees" means the guarantees by the Subsidiary Guarantors of
the senior notes issued and to be issued by the Company pursuant to the 1997
Indenture.
"1997 Series A Notes" means the 9 3/4% senior notes due 2007, Series A,
issued by the Company and sold in transactions exempt from registration under
the Securities Act.
"1997 Series B Notes" means the 9 3/4% senior notes due 2007, Series B,
issued or to be issued by the Company in exchange for the 1997 Series A Notes
pursuant to the registration statement provided for in the 1997 Indenture, as
such registration statement is amended and in effect from time to time.
"Additional Interest" shall have the meaning ascribed to that term in
Section 4(a) of the Registration Rights Agreement.
"Adjusted Net Assets" of a Subsidiary Guarantor at any date shall mean
the lesser of the amount by which (i) the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities, including,
without limitation, contingent liabilities (after giving effect to all other
fixed and contingent liabilities incurred or assumed on such date), but
excluding liabilities under the Subsidiary Guarantee, of such Subsidiary
Guarantor at such date and (ii) the present fair saleable value of the assets
of such Subsidiary Guarantor at such date exceeds the amount that will be
required to pay the probable liability of such Subsidiary Guarantor on its
debts (after giving effect to all other fixed and contingent liabilities
incurred or assumed on such date and after giving effect to any collection from
any Subsidiary of such Subsidiary Guarantor in respect of the obligations of
such Subsidiary under the Subsidiary Guarantee), excluding debt in respect of
the Subsidiary Guarantee, as they become absolute and matured.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
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"Agent" means any Registrar, Paying Agent or co-registrar.
"Asset" means each of the assets that are owned by the Company or a
Subsidiary on the Issue Date or that are acquired by the Company or a
Subsidiary after the Issue Date.
"Asset Sale" means any sale, issuance, conveyance, transfer, lease,
exchange or other disposition to any Person (including, without limitation, by
means of a sale-and-leaseback transaction or a merger of consolidation)
(collectively, for purposes of this definition, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) any Capital
Stock of any Subsidiary held by the Company or any other Subsidiary, (ii) all
or substantially all of the properties and assets of any division or line of
business of the Company or any of its Subsidiaries or (iii) any other
properties or assets of the Company or any of its Subsidiaries other than
transfers of cash, Cash Equivalents, accounts receivable or properties or
assets in the ordinary course of business; provided that the sale, lease,
conveyance or other disposition of all or substantially all of the properties
or assets of the Company and its Subsidiaries, taken as a whole, will be
governed by the provisions of Section 4.17 and/or the provisions of Article 5
and not by the provisions of Section 4.12. For the purposes of this
definition, the term "Asset Sale" also shall not include any of the following:
(a) any transfer of properties or assets to an Unrestricted Subsidiary, if such
transfer is not prohibited under Section 4.11; (b) any transfer of properties
or assets by the Company to a Subsidiary or by a Subsidiary to the Company or a
Subsidiary (in the case of a transfer to a Subsidiary that is not a Wholly
Owned Subsidiary, dispositions shall be excluded pursuant to this clause (b)
only to the extent of the Company's interest in such Subsidiary after giving
effect to such transfer); (c) sales of damaged, worn-out or obsolete equipment
or assets that, in the Company's reasonable judgment, are either (1) no longer
used or (2) no longer useful in the business of the Company or its
Subsidiaries; (d) any lease of any property entered into in the ordinary course
of business and with respect to which the Company or any Subsidiary is the
lessor, except any such lease that provides for the acquisition of such
property by the lessee during or at the end of the term thereof for an amount
that is less than the fair market value thereof at the time the right to
acquire such property is granted; or (e) any transfer that but for this
clause (e) would be an Asset Sale, if (1) the Company elects to designate such
transfers as not constituting Asset Sales and (2) after giving effect to such
transfers, the aggregate fair market value of the properties or assets
transferred in such transaction or any such series of related transactions so
designated by the Company does not exceed $5.0 million.
"Attributable Indebtedness" in respect of a sale-and-leaseback
transaction means, at the time of determination, the present value (discounted
at the rate of interest implicit in such transaction, determined in accordance
with GAAP) of the obligation of the lessee for net rental payments during the
remaining term of the lease included in such sale-and-leaseback transaction
(including any period for which such lease has been extended or may, at the
option of the lessor, be extended). As used in the preceding sentence, the
"net rental payments" under any lease for any such period shall mean the sum of
rental and other payments required to be paid with respect to such period by
the lessee thereunder, excluding any amounts required to be paid by such lessee
on account of maintenance and repairs, insurance, taxes, assessments, water
rates or similar charges. In the case of any lease that is terminable by the
lessee upon payment of penalty, such net rental payment shall also include the
amount of such penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may be so
terminated.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing (i) the sum of the products
of (a) the number of years from such date to the date of each successive
scheduled principal payment of such Indebtedness multiplied by (b) the amount
of such principal payment by (ii) the sum of all such principal payments.
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"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any committee of the board of directors of such
Person duly authorized to act on behalf of the board of directors of such
Person.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means any day which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of
corporate stock and any and all warrants, options and rights with respect
thereto, including each class of common stock and preferred stock of such
Person.
"Capitalized Lease Obligation" means the discounted present value of the
rental obligations of any Person under any lease of Property, which in
accordance with GAAP, is required to be capitalized on the balance sheet of
such Person.
"Cash Equivalents" means (a) the following kinds of investments if, in
the case of instruments referred to in clauses (i) through (iv) below, on the
date of purchase or other acquisition of any such instrument by the Company or
any Subsidiary, the remaining term to maturity is not more than one year:
(i) readily marketable obligations issued or unconditionally guaranteed as to
principal and interest by the United States or by any agency or authority
controlled or supervised by and acting as an instrumentality of the United
States; (ii) repurchase obligations for instruments of the type described in
clause (i) for which delivery of the instrument is made against payment;
(iii) obligations (including, but not limited to, demand or time deposits,
bankers' acceptances and certificates of deposit) issued by a depository
institution or trust company incorporated or doing business under the laws of
the United States, any State thereof or the District of Columbia or a branch or
subsidiary of any such depository institution or trust company operating
outside the United States, provided that such depository institution or trust
company has, at the time of the Company's or such Subsidiary's investment
therein or contractual commitment providing for such investment, capital,
surplus or undivided profits (as of the date of such institution's most
recently published financial statements), in excess of $100,000,000; and
(iv) commercial paper issued by any Person, if such commercial paper has, at
the time of the Company's or any Subsidiary's investment therein or contractual
commitment providing for such investment, credit ratings of A-1 by S&P and P-1
by Xxxxx'x; and (b) money market mutual or similar funds having assets in
excess of $100,000,000.
"Change of Control" means (i) an event or series of events by which any
Person or other entity or group of Persons or other entities acting in concert
as a partnership or other group (a "Group of Persons") other than the Xxxxxxxx
Group or any member thereof shall, as a result of a tender or exchange offer,
open market purchases, privately negotiated purchases, merger, consolidation or
otherwise, have become the beneficial owner (within the meaning of Rule 13d-3
under the Exchange Act) of 40% or more of the combined voting power of the then
outstanding Voting Stock of the Company, (ii) during any period of two
consecutive years, Continuing Directors cease for any reason to constitute a
majority of the Board of Directors then in office, (iii) the direct or indirect
sale, lease, exchange or other transfer of all or substantially all of the
assets of the Company and the Subsidiaries, taken as a whole, to any Person or
Group of Persons other than the Company or any Subsidiary Guarantor that is a
Wholly Owned Subsidiary, or (iv) the liquidation or dissolution of the Company.
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"Company" means the party named as such above, until a successor
replaces such Person in accordance with the terms of this Indenture, and
thereafter means such successor.
"Company Properties" means all Properties, and equity, partnership or
other ownership interests therein, that are related or incidental to, or used
or useful in connection with, the conduct or operation of any business
activities of the Company or the Subsidiaries, which business activities are
not prohibited by the terms of this Indenture.
"Consolidated EBITDA" means, with respect to any Person for any period,
the Consolidated Net Income of such Person for such period increased (to the
extent deducted in determining Consolidated Net Income) by the sum of: (i) all
income taxes of such Person and its subsidiaries paid or accrued according to
GAAP for such period (other than income taxes attributable to extraordinary,
unusual or non-recurring gains or losses), (ii) all interest expense of such
Person and its subsidiaries paid or accrued in accordance with GAAP for such
period (including amortization of original issue discount and the interest
portion of deferred payment obligations), (iii) depreciation and depletion of
such Person and its subsidiaries, (iv) amortization of such Person and its
subsidiaries including, without limitation, amortization of capitalized debt
issuance costs and (v) any other non-cash charges to the extent deducted from
Consolidated Net Income.
"Consolidated EBITDA Coverage Ratio" means, with respect to any Person,
the ratio of (1) Consolidated EBITDA of such Person for the period (the "Pro
Forma Period") consisting of the most recent four full fiscal quarters for
which financial information in respect thereof is available immediately prior
to the date of the transaction giving rise to the need to calculate the
Consolidated EBITDA Coverage Ratio (the "Transaction Date") to (2) the
aggregate Fixed Charges which such Person will accrue during the fiscal quarter
in which the Transaction Date occurs and the three fiscal quarters immediately
subsequent to such fiscal quarter (the "Forward Period") on the aggregate
amount of Indebtedness outstanding on the Transaction Date, including any
Indebtedness proposed to be incurred on such date and excluding any
Indebtedness repaid with the proceeds of such Indebtedness (as though all such
Indebtedness was incurred or repaid on the first day of the quarter in which
the Transaction Date occurred). In addition to, but without duplication of,
the foregoing, for purposes of this definition, "Consolidated EBITDA" shall be
calculated after giving effect (without duplication), on a pro forma basis for
the Pro Forma Period (but no longer), to (i) any Investment, during the period
commencing on the first day of the Pro Forma Period to and including the
Transaction Date (the "Reference Period"), in any other Person that, as a
result of such Investment, becomes a subsidiary of such Person, (ii) the
acquisition, during the Reference Period (by merger, consolidation or purchase
of stock or assets) of any business or assets, which acquisition is not
prohibited by this Indenture, including but not limited to Permitted Industry
Investments, as if such acquisition had occurred on the first day of the
Reference Period, (iii) any sales or other dispositions of assets occurring
during the Reference Period, in each case as if such incurrence, Investment,
repayment, acquisition or asset sale had occurred on the first day of the
Reference Period and (iv) interest income reasonably anticipated by the Company
to be received during the Pro Forma Period from Investments in Cash
Equivalents, which Investments exist on the Transaction Date or will exist as a
result of the transaction giving rise to the need to calculate the Consolidated
EBITDA Coverage Ratio. For purposes of this definition, "Fixed Charges" shall
be calculated after giving effect (without duplication), on a pro forma basis
for the Forward Period, to any Indebtedness incurred or repaid on or after the
first day of the Forward Period and prior to the Transaction Date. For
purposes of calculating the Company's Consolidated EBITDA Coverage Ratio,
Indebtedness of a Subsidiary that is not a Wholly Owned Subsidiary (which
Indebtedness is non-recourse to the Company or any other Subsidiary or any of
their assets) shall be included only to the extent of the Company's pro rata
ownership interest in such Subsidiary.
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"Consolidated Net Income" of any Person means, for any period, the
aggregate net income (or loss) of such Person and its subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP, provided
that (i) the net income of (a) any Unrestricted Subsidiary and (b) any other
Person in which such Person or any subsidiary thereof has an interest (which
interest, in the case of those Persons referred to in clause (b), does not
cause the net income of such other Person to be consolidated with the net
income of such Person in accordance with GAAP) will be included only to the
extent of the amount of dividends or distributions actually paid in cash or
Cash Equivalents to such Person or its subsidiaries that are Subsidiary
Guarantors by such other Person in such period; (ii) the net income of any
subsidiary of such Person that is subject to any Payment Restriction will be
excluded to the extent of such Payment Restriction; and (iii) (a) the net
income (or loss) of any other Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition, (b) any net
gain (but not loss) on the sale or other disposition by such Person or any of
its subsidiaries of assets and of the Capital Stock of any subsidiary of such
Person, (c) items which are extraordinary, and (d) the cumulative effect of a
change in accounting principles, will each be excluded.
"Consolidated Net Tangible Assets" as of any date means with respect to
any Person the Consolidated Net Worth of such Person and its consolidated
Subsidiaries as of such date less (i) all write-ups subsequent to the date of
this Indenture in the book value of any asset owned by such Person or a
consolidated Subsidiary of such Person (other than purchase accounting
adjustments made, in connection with any acquisition of any entity that becomes
a consolidated Subsidiary of such Person after the date of this Indenture to
the book value of the assets of such entity), (ii) all Investments as of such
date in unconsolidated Subsidiaries and in Persons that are not Subsidiaries
(except, in each case, Permitted Investments), (iii) all unamortized goodwill,
trademarks, trade names, service marks, brand names, copyrights, patents and
other intangible assets in accordance with GAAP, and (iv) unamortized debt
discount and expense and unamortized deferred charges of such date, all of the
foregoing determined in accordance with GAAP.
"Consolidated Net Worth" as of any date means with respect to any Person
the amount by which the assets of such Person and its subsidiaries on a
consolidated basis exceed (i) the total liabilities of such Person and its
subsidiaries on a consolidated basis, plus (ii) Disqualified Capital Stock of
such Person or Disqualified Capital Stock of any subsidiary of such Person
issued to any Person other than such Person or another wholly-owned subsidiary
of such Person, in each case determined in accordance with GAAP.
"Continuing Directors" means any member of the Board of Directors of the
Company on the Issue Date, any director elected since the date thereof in any
annual meeting of the stockholders upon the recommendation of the Board of
Directors of the Company and any other member of the Board of Directors of the
Company who will be recommended or elected to succeed a Continuing Director by
a majority of Continuing Directors who are then members of the Board of
Directors of the Company.
"Credit Facility" means one or more credit facilities without limitation
as to amount that now is or are or hereafter may be entered into among the
Company or one or more of its Subsidiaries or the Company and one or more of
its Subsidiaries, as the case may be, and the lenders parties thereto,
including any related notes, guarantees, collateral documents, and other
instruments and agreements executed in connection therewith without limitation
as to amount, which term, as of the Issue Date, initially consists of the Third
Amended and Restated Loan Agreement by and among Company, the financial
institutions party thereto and Xxxxx Fargo Bank (Texas), National Association,
as agent, and in each case as amended, modified, supplemented, renewed,
extended, refunded, replaced, restated or refinanced from time to time in whole
or part in one or more credit agreements, loan agreements, instruments or
similar agreements without limitation as to amount, as such may be further
amended, modified, supplemented, extended, refunded, restated, replaced,
renewed or refinanced from time to time.
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"Currency Agreement" means the obligations of any Person pursuant to any
foreign exchange contract, currency swap agreement or other similar agreement
or arrangement designed to protect such Person or any of its subsidiaries
against fluctuations in currency values.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Disqualified Capital Stock" means, with respect to any Person, any
Capital Stock of such Person or its subsidiaries that, by its terms, by the
terms of any agreement related thereto or by the terms of any security into
which, mandatorily or at the option of the holder, it is convertible or
exchangeable, is, or upon the happening of an event or the passage of time
would be, required to be redeemed or repurchased by such Person or its
subsidiaries, including at the option of the holder, in whole or in part, or
has, upon the happening of an event or the passage of time would have, a
redemption or similar payment due, in each such case on or prior to the
Maturity Date.
"Employee Stock Repurchases" means purchases by the Company of any of
its Capital Stock from officers and other employees for the purpose of enabling
such employees to pay personal income tax obligations with the proceeds;
provided that the aggregate amount of all such purchases shall not exceed
$500,000 during any fiscal year of the Company.
"Equity Interests" means Capital Stock or other equity interests and all
warrants, options or other rights to acquire Capital Stock or other equity
interests.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer" means the offer by the Company, pursuant to an
effective registration statement filed with the SEC, to exchange for any and
all of the Series A Securities a like aggregate principal amount of Series B
Securities in accordance with the terms and provisions of a corresponding
Registration Rights Agreement.
"Exchange Offer Consummation Date" means the date on which an Exchange
Offer is consummated in accordance with the terms and provisions of a
corresponding Registration Rights Agreement.
"Exempt Foreign Subsidiary" means (i) any Subsidiary engaged in business
permitted under this Indenture exclusively outside the United States of
America, irrespective of its jurisdiction of incorporation and (ii) any other
Subsidiary whose assets (excluding any cash and Cash Equivalents) consist
exclusively of Capital Stock or Indebtedness of one or more Subsidiaries
described in clause (i) of this definition, that, in any case, is so designated
by the Company in an Officers' Certificate delivered to the Trustee and (a) is
not a guarantor of, and has not granted any Lien to secure, the Credit Facility
or any other Indebtedness of the Company or any Subsidiary other than another
Exempt Foreign Subsidiary and (b) does not have total assets that, when
aggregated with the total assets of any other Exempt Foreign Subsidiary, exceed
25% of the Company's consolidated total assets, as determined in accordance
with GAAP, as reflected on the Company's most recent quarterly or annual
balance sheet. The Company may revoke the designation of any Exempt Foreign
Subsidiary by notice to the Trustee.
"Fixed Charges" means, with respect to any Person, for any period, the
aggregate amount of (i) interest, whether expensed or capitalized, paid,
accrued or scheduled to be paid or accrued during such period (except to the
extent accrued in a prior period) in respect of all Indebtedness of such Person
and its consolidated subsidiaries (including (a) original issue discount on any
Indebtedness and (b) the interest
Xxxxxx International Inc.: Indenture
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portion of all deferred payment obligations, calculated in accordance with the
effective interest method, in each case to the extent attributable to such
period) and (ii) dividend requirements on Disqualified Capital Stock of such
Person and its consolidated subsidiaries (whether in cash or otherwise (except
dividends payable in shares of Qualified Capital Stock) (non-cash dividends
being valued as determined in good faith by the Board of Directors of such
Person, as evidenced by a Board Resolution)) paid, accrued or scheduled to be
paid or accrued during such period (except to the extent accrued in a prior
period) and excluding items eliminated in consolidation; provided, however, in
no event shall the term "Fixed Charges" include any original issue discount or
premium paid on the 1997 Series A Notes or 1997 Series B Notes.
For purposes of the definition of Fixed Charges, (i) interest on a
Capitalized Lease Obligation shall be deemed to accrue at an interest rate
reasonably determined by the Board of Directors of such Person (as evidenced by
a Board Resolution) to be the rate of interest implicit in such Capitalized
Lease Obligation in accordance with GAAP; (ii) interest on Indebtedness that is
determined on a fluctuating basis shall be deemed to have accrued at a fixed
rate per annum equal to the rate of interest of such Indebtedness in effect on
the date Fixed Charges are being calculated, subject to the proviso in the
following clause (iii); (iii) interest on Indebtedness that may optionally be
determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rate, shall be deemed to have
been based upon the rate actually chosen, or, if none, then based upon such
optional rate chosen as the Company may designate, (provided that, for the
period following the date on which the rate actually chosen ceases to be in
effect, the Company may designate an optional rate other than that actually
chosen, which optional rate shall be deemed to accrue at a fixed per annum
equal to the rate of interest on such optional rate in effect on the date Fixed
Charges are being calculated); and (iv) Fixed Charges shall be increased or
reduced by the net cost (including amortization of discount) or benefit
associated with obligations under Interest Rate Agreements attributable to such
period.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of any date of determination.
"Guarantor Senior Indebtedness" means all Indebtedness of a Subsidiary
Guarantor (present and future) created, incurred, assumed or guaranteed by the
Subsidiary Guarantor (and all renewals, extensions, increases or refundings
thereof) (including the principal of, interest on and fees, premiums, expenses
(including costs of collection), indemnities and other amounts payable in
connection with such Indebtedness, and including any Post-Commencement
Amounts), unless the instrument governing such Indebtedness expressly provides
that such Indebtedness is not senior or superior in right of payment to the
Subsidiary Guarantee. Notwithstanding the foregoing, Guarantor Senior
Indebtedness does not include (i) any Indebtedness of the Subsidiary Guarantor
to the Company or any Subsidiary or any Unrestricted Subsidiary, and (ii) any
amounts payable or other liabilities to trade creditors.
"Holder" means a Person in whose name a Security is registered on the
Registrar's books.
"Indebtedness" means, with respect to any Person, without duplication,
any liability, contingent or otherwise, of such Person (i) for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of
such Person or only to a portion thereof), (ii) evidenced by bonds, notes,
debentures or similar instruments, (iii) representing the deferred and unpaid
balance of the purchase price of any property or interest therein (other than
any such balance that represents an account payable or any other monetary
obligation to a trade creditor created, incurred, assumed or guaranteed by such
Person in the ordinary course of business of such Person in connection with
obtaining goods, materials or services and due within twelve months (or such
longer period for payment as is customarily extended by such trade creditor) of
the incurrence thereof, which account is not overdue by more than 150 days,
according to the original terms of sale, unless such account payable is being
contested in good faith or
Xxxxxx International Inc.: Indenture
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14
has been extended), (iv) for the payment of a Capitalized Lease Obligation of
such Person, (v) with respect to the reimbursement of any letter of credit,
banker's acceptance or similar credit transaction, (vi) with respect to
Indebtedness (as otherwise defined in this definition) of another Person
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is assumed by such Person (provided that if the obligations so secured have not
been assumed in full by such Person or are not otherwise such Person's legal
liability in full, then such obligations shall be deemed to be in an amount
equal to the greater of (A) the lesser of (1) the full amount of such
obligations, and (2) the fair market value of such assets, as determined in
good faith by the Board of Directors of such Person, which determination shall
be evidenced by a Board Resolution, and (B) the amount of obligations as have
been assumed by such Person or which are otherwise such Person's legal
liability), (vii) to the extent not otherwise included, under Currency
Agreements and Interest Rate Agreements entered into other than in the ordinary
course of such Person's business, (viii) in the case of such Person, the
liquidation preference and any mandatory redemption payment obligations in
respect of Disqualified Capital Stock, and, in the case of a subsidiary of such
Person, the liquidation preference and any mandatory redemption payment
obligations in respect of preferred stock of such subsidiary, and (ix) in
respect of all Indebtedness of others which such Person has guaranteed,
endorsed with recourse (otherwise than for collection, deposit or other similar
transactions in the ordinary course of business), agreed to purchase or
repurchase or in respect of which such Person has agreed contingently to supply
or advance funds or for which such Person has otherwise become liable;
provided, however, Indebtedness arising pursuant to clause (iii) of this
definition as a result of such account payable becoming overdue by more than
150 days shall only be deemed to be incurred at a time when Indebtedness, other
than such Indebtedness, is incurred.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Director" means any director of the Company who is neither
(i) an executive officer or an employee of the Company or of any of its
Subsidiaries or Affiliates, nor (ii) a Related Person.
"Initial Purchaser" means Xxxxxxxxx & Company, Inc.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) or
(7) under the Securities Act.
"Insolvency or Liquidation Proceeding" means, with respect to any
Person, (a) an insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization proceeding or other similar case or
proceeding, relative to such Person or to its creditors, as such, or its
assets, (b) any liquidation, dissolution or reorganization proceeding of such
Person, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of such Person.
"Interest Rate Agreement" means the obligations of any Person pursuant
to any interest swap agreement, interest rate collar agreement or other similar
agreement or arrangement designed to protect such Person or any of its
subsidiaries against fluctuations in interest rates.
"Investment" means, in respect of any Person, any investment in another
Person, whether by means of a share purchase, capital contribution, loan,
advance (other than advances to employees for moving and travel expenses,
drawing accounts and similar expenditures in the ordinary course of business)
or similar credit extension constituting Indebtedness of such other Person and
any guaranty of Indebtedness of any other Person; provided that the following
shall not constitute Investments: (a) extension of trade credit or other
advances to customers on commercially reasonable terms in accordance with
normal trade practices or otherwise in the ordinary course of business,
(b) obligations
Xxxxxx International Inc.: Indenture
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15
under Interest Rate Agreements and Currency Agreements, but only to the extent
that the same constitute Permitted Indebtedness, (c) endorsements of negotiable
instruments and documents in the ordinary course of business, (d) an
acquisition of assets, Capital Stock or other securities by the Company or any
of its Subsidiaries for consideration consisting of Capital Stock or other
common equity securities of the Company or any of its Subsidiaries, and
(e) stock, obligations and other securities received in settlement of debts
owing to the Company or any of its Subsidiaries as a result of collection
efforts or proceedings or upon the foreclosure or enforcement of any Lien in
favor of the Company or any such Subsidiary, in each case, as to debt owing to
the Company or any such Subsidiary that arose in the ordinary course of
business of the company or any such Subsidiary. For purposes of Section 4.11
and the definition of Permitted Unrestricted Subsidiary Investments, (i) an
"Investment" in an Unrestricted Subsidiary shall be deemed to include and be
valued at the fair market value of the net assets of any Subsidiary at the time
that such Subsidiary is designated an Unrestricted Subsidiary, and (ii) any
Investment in an Unrestricted Subsidiary shall be valued at fair market value
at the time of such Investment (except, however, when such Investment consists
of a loan or advance by a Person to another Person that is of an intercompany
or similar nature between such Persons and arises pursuant to an agreement or
understanding in the ordinary course of business relating to tax sharing,
administrative or similar arrangements, then such Investment shall be valued at
fair market value at the time that the investing Person shall have paid monies
or transferred other consideration to another Person for the benefit of the
Person in whom the agreement to make such loan or advance was made), in each
case as determined by the Board of Directors of the Company and such
Subsidiary, as applicable, in good faith.
"Issue Date" means the first date on which the Series A Securities are
issued under this Indenture.
"Xxxxxxxx Group" means Xxxxxxxx Industries, Inc., X.X. Xxxxxxxx and any
Person related to X.X. Xxxxxxxx within the second degree of consanguinity, any
trust for the benefit of one or more of such Persons, and any Person controlled
directly or indirectly by any such Person.
"Lien" means, with respect to any Person, any mortgage, pledge, lien,
encumbrance, easement, restriction, covenant, right-of-way, charge or adverse
claim affecting title or resulting in an encumbrance against real or personal
property of such Person, or a security interest of any kind (including any
conditional sale or other title retention agreement, any lease in the nature
thereof, any option, right of first refusal or other similar agreement to sell,
in each case securing obligations of such Person and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or
equivalent statute or statutes) of any jurisdiction).
"Material Subsidiary" means any Subsidiary of the Company which, as of
the relevant date of determination, would be a "significant subsidiary" as
defined in Reg. Section 230.405 promulgated pursuant to the Securities Act as
in effect on the Issue Date, assuming the Company is the "registrant" referred
to in such definition, except that the 10% amounts referred to in such
definition shall be deemed to be 5%.
"Maturity Date" means February 15, 2008.
"Moody's" means Xxxxx'x Investors Service, Inc. and its successors.
"Net Available Proceeds" means the aggregate cash proceeds received by
the Company or any of its Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash proceeds received upon the sale or other
disposition of, or payments or collections on, any non-cash consideration
received in any Asset Sale, provided that such sale or other disposition was
contemplated by the Company or its applicable Subsidiary in connection with,
and was consummated incident to, such Asset Sale, and in respect to each of the
foregoing receipts of cash proceeds only as and when received, and excluding
any
Xxxxxx International Inc.: Indenture
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other consideration until such time as such consideration is converted into,
and received by the Company or any of its Subsidiaries as, cash), net of all
(i) legal, accounting and investment banking fees and expenses, sales
commissions, relocation, transportation, handling and storage expenses, title,
recording and if applicable, release expenses and other fees and expenses
incurred as a result of such Asset Sale, (ii) taxes paid or payable as a result
of such Asset Sale or required to be accrued as a liability as a consequence
thereof (after taking into account any available and applicable tax credits or
deductions and any applicable tax sharing arrangements), (iii) amounts required
to be applied to the repayment of Indebtedness secured by a Lien on the asset
or assets that were the subject of such Asset Sale, (iv) amounts required to be
paid to any Person (other than the Company or any Subsidiary) owning a
beneficial interest in the asset or assets that were the subject of such Asset
Sale, (v) amounts required to be paid in order to obtain a necessary consent to
such Asset Sale or by applicable law, and (vi) reserves to adjustments in
respect of the sale price of such asset or assets established in accordance
with GAAP.
"Net Proceeds" means (i) in the case of any sale by the Company of
Qualified Capital Stock, the aggregate net cash proceeds received by the
Company, after payment of expenses, commissions and the like incurred in
connection therewith, and (ii) in the case of any exchange, exercise,
conversion or surrender of any outstanding securities or Indebtedness of the
Company for or into shares of Qualified Capital Stock of the Company, the net
book value of such outstanding securities or Indebtedness as adjusted on the
books of the Company on the date of such exchange, exercise, conversion or
surrender (plus any additional amount required to be paid by the holder of such
Indebtedness or securities to the Company upon such exchange, exercise,
conversion or surrender and less any and all payments made to the holders of
such Indebtedness or securities, and all other expenses incurred by the Company
in connection therewith).
"Non-Recourse Indebtedness" means Indebtedness (i) as to which neither
the Company nor any of its Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a Subsidiary Guarantor
or otherwise), or (c) constitutes the lender unless otherwise permitted under
this Indenture; and (ii) no default with respect to which (including any rights
that the holders thereof may have to take enforcement action against an
Unrestricted Subsidiary) would permit (upon notice, lapse of time or both) any
holder of any other Indebtedness of the Company or any of its Subsidiaries to
declare pursuant to the express terms governing such Indebtedness a default on
such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its stated maturity.
"Obligations" mean the due and punctual payment of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company
under this Indenture and the Securities and the due and punctual performance of
all other obligations of the Company under this Indenture and the Securities.
"Officer" means, with respect to any Person, the Chairman of the Board,
the President, any Vice President, the Chief Financial Officer or the Treasurer
of such Person.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by two Officers or by an Officer and either a Secretary, Assistant
Secretary or Assistant Treasurer of such Person.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company (or any Subsidiary Guarantor, if applicable).
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"Pari Passu Indebtedness" means, with respect to any Net Available
Proceeds from the Asset Sales, Indebtedness of the Company and its Subsidiaries
the terms of which require the Company or such Subsidiary to apply such Net
Available Proceeds to offer to repurchase such Indebtedness.
"Permitted Indebtedness" means (i) Indebtedness under the Original
Securities and any Series B Securities issued in exchange for Series A
Securities of equal principal amount pursuant to an Exchange Offer;
(ii) Indebtedness from time to time outstanding under the Credit Facility in an
aggregate principal amount at any one time outstanding not to exceed the
greater of (a) the sum of (1) 85% of accounts receivable (net of any related
reserves) of the Company and its Subsidiaries plus (2) 50% of the
revenue-producing tools and inventory of the Company and its Subsidiaries, as
such amounts are determined on a consolidated basis in accordance with GAAP and
reflected on the Company's most recent balance sheet prepared in accordance
with GAAP, or (b) $30.0 million, plus all interest and fees under such
agreements and any guarantee of any such Indebtedness; (iii) the Subsidiary
Guarantees of the Securities (and any assumption of the obligations guaranteed
thereby); (iv) Permitted Refinancing Indebtedness; (v) Indebtedness of the
Company to any Wholly Owned Subsidiary, and any Indebtedness of any Wholly
Owned Subsidiary to the Company or to any Wholly Owned Subsidiary; provided,
that in each case, such Indebtedness has not been incurred in contemplation of
any subsequent issuance or transfer of any Capital Stock or any other event
which would result in any such Wholly Owned Subsidiary ceasing to be a Wholly
Owned Subsidiary or any other subsequent transfer of any such Indebtedness
(except to the Company or a Wholly Owned Subsidiary), and if incurred in
contemplation of any of the foregoing events, then such Indebtedness shall be
deemed to be incurred and shall be treated as an incurrence of Indebtedness for
purposes of Section 4.09 at the time the Wholly Owned Subsidiary in question
ceased to be a Wholly Owned Subsidiary; (vi) Permitted Operating Obligations;
(vii) other Indebtedness outstanding at any time in an aggregate principal
amount not to exceed $10.0 million; (viii) Indebtedness outstanding on the
Issue Date; and (ix) Indebtedness under the 1997 Series B Notes, the 1997
Guarantees and the 1997 Indenture. Permitted Refinancing Indebtedness that
constitutes a refinancing of amounts referred to in clauses (ii) and (vii)
shall be deemed to be incurred pursuant to and subject to the limitations in
clauses (ii) and (vii), respectively. The Company may elect at any time that
amounts of Indebtedness incurred under clauses (ii) or (vii) be deemed to be
incurred pursuant to the first paragraph of Section 4.09 (if then permitted to
be so incurred), in which event such amounts so incurred shall be deemed not to
be incurred under clause (ii) or (vii); provided, however, any such
Indebtedness deemed not to be incurred under clause (ii) shall still be treated
as Indebtedness under and governed by the Credit Facility for purposes of all
other provisions of this Indenture.
"Permitted Industry Investments" means (i) capital expenditures,
including, without limitation, acquisitions of Company Properties and interests
therein; (ii) exchanges of Company Properties for other Company Properties of
at least equivalent value as determined in good faith by the Board of Directors
of the Company; (iii) Investments by the Company or any Subsidiary in any
Subsidiary (or in any Person that becomes a Subsidiary as a result of such
Investment) that are not subject to any Payment Restriction; and
(iv) Investments by the Company or any Subsidiary in any Person of which less
than 50% of the issued and outstanding Equity Interests is owned by the Company
or another Subsidiary of the Company; provided that the aggregate of all
Investments by the Company and any Subsidiary pursuant to this clause (iv)
shall at not time exceed 15% of the Consolidated Net Tangible Assets of the
Company.
"Permitted Investments" means Cash Equivalents and Permitted Industry
Investments (in each case, other than Investments in Unrestricted
Subsidiaries).
"Permitted Liens" means (i) Liens for taxes, assessments and
governmental charges not yet delinquent or being contested in good faith and
for which such adequate reserves have been established to the extent required
by GAAP, (ii) landlord's, carriers, warehouseman's, storage, mechanics',
workmen's, materialmen's, operator's or similar Liens arising in the ordinary
course of business,
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(iii) easements, rights-of-way, restrictions and other similar encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning restrictions, easements, licenses, restrictions on the use of Company
Properties or minor imperfections in title thereto which, in the aggregate, are
not material in amount, and which do not in any case materially detract from
the Company Properties subject thereto or interfere with the ordinary conduct
of the business of the Company or the Subsidiaries, (iv) Liens on Company
Properties which arise out of operation of law, (v) judgment and attachment
Liens not giving rise to an Event of Default or Liens created by or existing
from any litigation or legal proceeding that are currently being contested in
good faith by appropriate proceedings and for which adequate reserves have been
made, (vi) (a) Liens upon any Property of any Person existing at the time of
acquisition thereof by the Company or any Subsidiary, (b) Liens upon any
Property of a Person existing at the time such Person is merged or consolidated
with the Company or any Subsidiary or existing at the time of the sale or
transfer of any such Property of such Person to the Company or any Subsidiary,
or (c) Liens upon any Property of a Person existing at the time such Person
becomes a Subsidiary; provided that in each case such Lien has not been created
in contemplation of such sale, merger, consolidation, transfer or acquisition,
and provided further that in each such case no such Lien shall extend to or
cover any Property of the Company or any Subsidiary other than the Property
being acquired and improvements thereon, (vii) Liens existing on the Issue
Date, (viii) Liens on deposits made in the ordinary course of business,
including, without limitation, pledges or deposits under worker's compensation,
unemployment insurance and other social security legislation and deposits to
secure the performance of bids, trade contracts (other than for borrowed
money), leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a similar nature incurred in the ordinary course
of business, (ix) Liens in favor of collecting or payor banks having a right of
setoff, revocation, refund or chargeback with respect to money or instruments
of the Company or any Subsidiary on deposit with or in possession of such bank,
(x) Liens upon any Property which were created solely for the purpose of
securing Indebtedness representing, or incurred to finance, refinance or
refund, the cost (including the cost of construction) of such Property;
provided that (A) no such Lien shall extend to or cover any Property of the
Company or any Subsidiary other than the Property so acquired and improvements
thereon and (B) the Lien securing any such Indebtedness shall be created within
90 days of such acquisition, (xi) Liens securing Indebtedness that constitutes
Permitted Indebtedness pursuant to clause (i), (ii), (iii), (iv) (but only to
the extent secured at the time of such renewal, extension, refunding or
repurchase, and no such Lien shall extend to any other Property of the Company
or any Subsidiary), and (vi) of the definition of Permitted Indebtedness,
(xii) any interest or title of a lessor under any Capitalized Lease Obligation
or operating lease and (xiii) Liens securing obligations under or in respect of
either Currency Agreements or Interest Rate Agreements.
"Permitted Operating Obligations" means Indebtedness of the Company or
any Subsidiary in respect of one or more standby letters of credit, bid,
performance or surety bonds, or other reimbursement obligations, issued for the
account of, or entered into by, the Company or any Subsidiary in the ordinary
course of business, or in lieu of any thereof or in addition to any thereto,
guarantees and letters of credit supporting any such obligations and
Indebtedness (in each case, other than for an obligation for borrowed money,
other than borrowed money represented by any such letter of credit, bid,
performance or surety bond, or reimbursement obligation itself, or any
guarantee and letter of credit related thereto).
"Permitted Refinancing Indebtedness" means (i) Senior Indebtedness of
the Company or any Subsidiary, the net proceeds of which are used solely to
renew, extend, refinance, refund or repurchase outstanding Securities, 1997
Series A Notes or 1997 Series B Notes, including the amount of reasonable fees
and expenses and premium, if any, incurred by the Company or such Subsidiary in
connection therewith; or (ii) Indebtedness of the Company or any
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Subsidiary, the net proceeds of which are used to renew, extend, refinance,
refund or repurchase (including, without limitation, pursuant to a Change of
Control Offer as required by the terms of the Securities) outstanding
Indebtedness of the Company or any Subsidiary, provided that (a) if the
Indebtedness (including the Securities) being renewed, extended, refinanced,
refunded or repurchased is pari passu with or subordinated in right of payment
to either the Securities or the Subsidiary Guarantees, then such Indebtedness
is pari passu with or subordinated in right of payment to, as the case may be,
the Securities or the Subsidiary Guarantees at least to the same extent as the
Indebtedness being renewed, extended, refinanced, refunded or repurchased,
(b) such Indebtedness is scheduled to mature no earlier than the Indebtedness
being renewed, extended, refinanced, refunded or repurchased, and (c) such
Indebtedness has an Average Life at the time such Indebtedness is incurred that
is greater than the Average Life of the Indebtedness being renewed, extended,
refinanced, refunded or repurchased; provided, further, that such Indebtedness
(to the extent that such Indebtedness constitutes Permitted Refinancing
Indebtedness) is in an aggregate principal amount (or, if such Indebtedness is
issued at a price less than the principal amount thereof, the aggregate amount
of gross proceeds therefrom is) not in excess of the aggregate principal amount
then outstanding of the Indebtedness being renewed, extended, refinanced,
refunded or repurchased (or if the Indebtedness being renewed, extended,
refinanced, refunded or repurchased was issued at a price less than the
principal amount thereof, then not in excess of the amount of liability in
respect thereof determined in accordance with GAAP) plus the amount of
reasonable fees and expenses and premium, if any, incurred by the Company or
such Subsidiary in connection therewith.
"Permitted Unrestricted Subsidiary Investments" means Investments in
Unrestricted Subsidiaries in a cumulative aggregate amount (in cash or the fair
market value of property other than cash, as determined in good faith by the
Board of Directors of the Company) not to exceed the sum of (i) $10.0 million
and (ii) cash or cash equivalent distributions made from any Unrestricted
Subsidiary and received, after the Issue Date, as such by the Company, provided
that any amount included in this clause (ii) shall be deducted from any amounts
referred to in clause (y)(3) of Section 4.11. Notwithstanding the foregoing,
Permitted Unrestricted Subsidiary Investments shall also include any
Investments in Unrestricted Subsidiaries to the extent such Investment consists
of (a) Qualified Capital Stock of the Company or (b) amounts referred to in
clause (y)(2) of Section 4.11, which Investments shall be excluded from the sum
in the previous sentence, provided that the amount of any Investments pursuant
to this clause (b) shall be deducted from amounts referred to in clause (y)(2)
of Section 4.11.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Post-Commencement Amounts" means all interest and fees accrued or
accruing after the commencement of any Insolvency or Liquidation Proceeding in
accordance with and at the contract rate (including, without limitation, any
non-usurious rate applicable upon default) and all premiums, expenses
(including costs of collection), indemnities and other amounts that would have
accrued or been incurred after the commencement of any Insolvency or
Liquidation Proceeding in any case as specified in any agreement or instrument
creating, evidencing, or governing any Senior Indebtedness or any Guarantor
Senior Indebtedness, as the case may be, whether or not, pursuant to applicable
law or otherwise, the claim for such interest, fees, premiums, expenses,
indemnities or other amounts is allowed and non-avoidable as a claim in such
Insolvency or Liquidation Proceeding.
The term "principal" of a debt security means the principal amount of
the security plus the premium, if any, on the security.
"Private Placement Legend" means the legend initially set forth on the
Securities in the form set forth in Exhibit A attached hereto.
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The term "pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of Regulation S-X under the Securities Act, as
amended.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including, without limitation, Capital Stock,
partnership interests and other equity or ownership interests in any other
Person.
"Public Equity Offering" means an underwritten public offer and sale of
common stock (that is Qualified Capital Stock) of the Company pursuant to a
registration statement that has been declared effective by the SEC pursuant to
the Securities Act (other than a registration statement on Form S-8 or
otherwise relating to equity securities issuable under any employee benefit
plan of the Company).
"Purchase Money Obligations" means indebtedness evidenced by a note,
debenture, bond or other security or investment (whether or not secured by any
lien or other security interest) issued to or assumed in favor of a vendor as
all or part of the purchase price of property acquired by the Company or any
Subsidiary; provided, however, that such term shall not include any account
payable or any other indebtedness incurred, created or assumed in the ordinary
course of business in connection with the obtaining of material, products or
services.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" has the meaning attributed thereto in
Rule 144A under the Securities Act.
"Registration Default" shall have the meaning ascribed thereto in a
Registration Rights Agreement.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of February 13, 1998, among the Company, the Subsidiary
Guarantors and the Initial Purchaser relating to the Original Securities, a
copy of which is attached hereto as Annex A, and (ii) any similar agreement
that the Company and the Subsidiary Guarantors may enter into in relation to
any other Series A Securities, in each case, as such agreement may be amended,
modified or supplemented from time to time.
"Regulation S" means Regulation S under the Securities Act.
"Related Person" means (i) any Affiliate of the Company, (ii) any
individual or other Person who directly or indirectly holds 10% or more of the
combined voting power of the then outstanding Voting Stock of the Company,
(iii) any relative of any individual referred to in clauses (i), (ii) and (iv)
hereof by blood, marriage or adoption not more remote than first cousin and
(iv) any officer or director of the Company.
"Representative" means the indenture trustee or other trustee, agent or
representative for any issue of Senior Indebtedness or Guarantor Senior
Indebtedness.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department 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
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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.
"Restricted Debt Prepayment" means any purchase, redemption, defeasance
(including, but not limited to, in substance or legal defeasance) or other
acquisition or retirement for value, directly or indirectly, by the Company or
a Subsidiary, prior to the scheduled maturity or prior to any scheduled
repayment of principal or sinking fund payment, as the case may be, in respect
of Indebtedness of the Company or any Subsidiary that is subordinate in right
to the Securities or the Subsidiary Guarantees, provided, however, that any
such acquisition shall be deemed not to be a Restricted Debt Prepayment to the
extent it is made (i) in exchange for or with the proceeds from the
substantially concurrent issuance of Qualified Capital Stock or (ii) in
exchange for or with the proceeds from the substantially concurrent issuance of
Indebtedness, in a principal amount (or, if such Indebtedness provides for an
amount less than the principal amount thereof to be due and payable upon the
acceleration thereof, with an original issue price) not to exceed the lesser of
(a) the principal amount of Indebtedness being acquired in exchange therefor
(or with the proceeds therefrom) and (b) if such Indebtedness being acquired
was issued at an original issue discount, the original issue price thereof plus
amortization of the original issue discount at the time of the incurrence of
the Indebtedness being issued in exchange therefor (or the proceeds of which
will finance such acquisition), and provided further that any such Indebtedness
shall have an Average Life not less than the Average Life of the Indebtedness
being acquired, and shall contain subordination and default provisions no less
favorable, in any material respect, to holders of the Securities than those
contained in such Indebtedness being acquired.
"Restricted Payment" means any (i) Stock Payment, (ii) Investment (other
than Permitted Investments and other than Permitted Unrestricted Subsidiary
Investments) or (iii) Restricted Debt Prepayment.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Group and its successors.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Indebtedness" means all Indebtedness of the Company (present and
future) created, incurred, assumed or guaranteed by the Company (and all
renewals, extensions or refundings thereof) (including the principal of,
interest on and fees, premiums, expenses (including costs of collection),
indemnities and other amounts payable in connection with such Indebtedness, and
including any Post-Commencement Amounts), unless the instrument governing such
Indebtedness expressly provides that such Indebtedness is not senior or
superior in right of payment to the Securities. Notwithstanding the foregoing,
Senior Indebtedness of the Company does not include (i) any Indebtedness of the
Company to any Subsidiary or any Unrestricted Subsidiary and (ii) any amounts
payable or other liabilities to trade creditors.
"Stock Payment" means, with respect to any Person, (a) the declaration
or payment by such Person, either in cash or in property, of any dividend on
(except, in the case of the Company, dividends payable solely in Qualified
Capital Stock of the Company), or the making by such Person or any of its
subsidiaries of any other distribution in respect of, such Person's Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock (except for the issuance of Qualified Capital Stock
pursuant to the exercise thereof), or (b) the redemption, repurchase,
retirement
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or other acquisition for value by such Person or any of its subsidiaries,
directly or indirectly, of such Person's or any of its subsidiaries' Capital
Stock or any warrants, rights or options to purchase or acquire shares of any
class of such Capital Stock other than, in the case of the Company, through the
issuance in exchange therefor solely of Qualified Capital Stock of the Company;
provided, however, that in the case of a Subsidiary, the term "Stock Payment"
shall not include (i) any such payment with respect to its Capital Stock or
warrants, rights or options to purchase or acquire shares of any class of its
Capital Stock payable to the Company or a Wholly Owned Subsidiary, or
(ii) Employee Stock Repurchases.
A "subsidiary" of any Person means (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
one or more wholly owned subsidiaries of such Person or by such Person and one
or more wholly owned subsidiaries of such Person, (ii) a partnership in which
such Person or a wholly owned subsidiary of such Person is, at the date of
determination, a general or limited partner of such partnership, but only if
such Person or its wholly owned subsidiary is entitled to receive more than
fifty percent of the assets of such partnership upon its dissolution, or
(iii) any other Person (other than a corporation or partnership) in which such
Person, a wholly owned subsidiary of such Person or such Person and one or more
wholly owned subsidiaries of such Person, directly or indirectly, at the date
of determination thereof, has (x) at least a majority ownership interest or
(y) the power to elect or direct the election of a majority of the directors or
other governing body of such Person.
"Subsidiary" means any subsidiary of the Company; provided, that an
Unrestricted Subsidiary shall not be deemed a subsidiary of the Company for
purposes of this Indenture.
"Subsidiary Guarantee" means, individually and collectively, the
guarantees given by the Subsidiary Guarantors pursuant to Article Ten,
including a notation in the Securities substantially in the form attached
hereto as Exhibit A-1.
"Subsidiary Guarantor" means (i) each of Xxxxxx Energy Services, Inc., a
Delaware corporation; Xxxxxx International Sales Corporation, a Delaware
corporation; Columbia Petroleum Services Corp., a Delaware corporation;
International Petroleum Services, Inc., a Delaware corporation; Xxxxxx
Environmental Remediation Technologies, Inc., a Texas corporation; Xxxxxx
Worldwide Services, Corp., a Texas corporation; Air Drilling International,
Inc., a Delaware corporation; and Air Drilling Services, Inc., a Wyoming
corporation; (ii) each of the Company's Subsidiaries that becomes a guarantor
of the Securities in compliance with the provisions of Article Ten and
(iii) each of the Company's Subsidiaries executing a supplemental indenture in
which such Subsidiary agrees to be bound by the terms of this Indenture.
"Transfer Restricted Security" has the meaning attributed thereto in the
Registration Rights Agreement; provided, however, that the Trustee shall be
entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether or not any Security is a Transfer Restricted Security.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and in force at the date as of which this Indenture was executed until
such time as this Indenture is qualified under the TIA, and thereafter as in
effect on the date on which this Indenture is qualified under the TIA, except
as provided in Section 9.03.
"Trust Officer" means any officer or assistant officer within the
corporate trust department of the Trustee assigned by the Trustee to administer
its corporate trust matters.
"Trustee" means the party named as such above until a successor replaces
it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
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"U.S. Legal Tender" means such coin or currency of the United States as
at the time of payment shall be legal tender for the payment of public and
private debts.
"United States" means the United States of America.
"Unrestricted Subsidiary" means (i) any subsidiary of the Company which
at the time of determination shall be an Unrestricted Subsidiary (as designated
by the Board of Directors of the Company, as provided below) and (ii) any
subsidiary of an Unrestricted Subsidiary. The Board of Directors of the
Company may designate any Subsidiary (including any newly acquired or newly
formed Subsidiary or a Person becoming a Subsidiary through merger or
consolidation or Investment therein) to be an Unrestricted Subsidiary only if:
(a) such Subsidiary does not own any Capital Stock of, or own or hold any Lien
on any property of, any other Subsidiary of the Company which is not a
Subsidiary of the Subsidiary to be so designated or otherwise an Unrestricted
Subsidiary; (b) all the Indebtedness of such Subsidiary shall at the date of
designation, and will at all times thereafter, consist of Non-Recourse
Indebtedness; (c) the Company certifies that such designation complies with
Section 4.11; and (d) such Subsidiary, either alone or in the aggregate with
all other Unrestricted Subsidiaries, does not operate, directly or indirectly,
all or substantially all of the business of the Company and the Subsidiaries.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a Board Resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions. If, at any time, such Unrestricted Subsidiary would fail
to meet the foregoing requirements as an Unrestricted Subsidiary, it shall
thereafter cease to be an Unrestricted Subsidiary for purposes of this
Indenture, and any Indebtedness of such Subsidiary shall be deemed to be
incurred as of such date. The Board of Directors of the Company may designate
any Unrestricted Subsidiary to be a Subsidiary; provided that immediately after
giving effect to such designation, the Company could incur at least $1.00 of
additional Indebtedness (excluding Permitted Indebtedness) pursuant to the
first paragraph of Section 4.09 on a pro forma basis taking into account such
designation.
"Voting Stock" means, with respect to any Person, securities of any
class or classes of Capital Stock in such Person entitling the holders thereof
(whether at all times or only so long as no senior class of stock has voting
power by reason of any contingency) to vote in the election of members of the
board of directors or other governing body of such Person.
"Wholly Owned Subsidiary" means a Subsidiary to the extent (i) all of
the Capital Stock or other ownership interests in such Subsidiary, other than
any directors' qualifying shares mandated by applicable law, is owned directly
or indirectly by the Company or (ii) such Subsidiary is organized in a foreign
jurisdiction and is required by the applicable laws and regulations of such
foreign jurisdiction to be partially owned by the government of such foreign
jurisdiction or individual or corporate citizens of such foreign jurisdiction
in order for such Subsidiary to transact business in such foreign jurisdiction,
provided that the Company, directly or indirectly, owns the remaining Capital
Stock or ownership interests in such Subsidiary and, by contract or otherwise,
controls the management and business of such Subsidiary and derives the
economic benefits of ownership of such Subsidiary to substantially the same
extent as if such Subsidiary were a Wholly Owned Subsidiary.
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SECTION 1.02. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Agent Members" . . . . . . . . . . . . . . . . . . 2.07
"Asset Sale Offer". . . . . . . . . . . . . . . . . 4.12
"Asset Sale Offer Purchase Date". . . . . . . . . . 4.12
"Asset Sale Offer Trigger Date" . . . . . . . . . . 4.12
"Bankruptcy Law". . . . . . . . . . . . . . . . . . 6.01
"Change of Control Notice". . . . . . . . . . . . . 4.17
"Change of Control Offer" . . . . . . . . . . . . . 4.17
"Change of Control Purchase Date" . . . . . . . . . 4.17
"Change of Control Purchase Price". . . . . . . . . 4.17
"Custodian" . . . . . . . . . . . . . . . . . . . . 6.01
"DTC" . . . . . . . . . . . . . . . . . . . . . . . 2.01
"Event of Default". . . . . . . . . . . . . . . . . 6.01
"Excess Proceeds" . . . . . . . . . . . . . . . . . 4.12
"Funding Guarantor" . . . . . . . . . . . . . . . .10.05
"Global Security" . . . . . . . . . . . . . . . . . 2.01
"Legal Holiday" . . . . . . . . . . . . . . . . . .11.07
"Offer Amount". . . . . . . . . . . . . . . . . . . 4.12
"Offer Period". . . . . . . . . . . . . . . . . . . 4.12
"Original Securities" . . . . . . . . . . . . . . . 2.02
"Paying Agent". . . . . . . . . . . . . . . . . . . 2.03
"Payment Restriction" . . . . . . . . . . . . . . . 4.14
"Physical Securities" . . . . . . . . . . . . . . . 2.01
"Project Period". . . . . . . . . . . . . . . . . . 4.12
"Registrar" . . . . . . . . . . . . . . . . . . . . 2.03
"Related Party Transaction" . . . . . . . . . . . . 4.15
"Securities" . . . . . . . . . . . . . . . Introductory Paragraph
"Security Register" . . . . . . . . . . . . . . . 2.06
"Series A Securities" . . . . . . . . . . . . Introductory Paragraph
"Series B Securities" . . . . . . . . . . . . Introductory Paragraph
"U.S. Government Obligations" . . . . . . . . . . . 8.02
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, if used in this Indenture, have the following meanings:
"indenture securities" means the Securities and the Subsidiary
Guarantees.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company, the
Subsidiary Guarantors and any other obligor on the Securities or the
Subsidiary Guarantees.
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All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them therein.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) any gender used in this Indenture shall be deemed to
include the neuter, masculine or feminine genders;
(6) provisions apply to successive events and transactions;
(7) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other Subdivision, and reference herein to any Article, Section or
other subdivision thereof shall, without further reference, mean such
Article, Section or other subdivision of this Indenture, unless the
context otherwise provides; and
(8) when used with reference to the Securities, the expression
"of like tenor" refers to Securities of the same series.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. FORM AND DATING.
The definitive Securities shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or notations of Subsidiary
Guarantees, as the case may be, as evidenced by their execution of such
Securities or notations of Subsidiary Guarantees, as the case may be.
Except as indicated in the next succeeding paragraph, Securities
(including the notations thereon relating to the Subsidiary Guarantees and the
Trustee's certificate of authentication) shall be issued initially in the form
of one or more permanent global securities in registered form in substantially
the form set forth in Exhibits A, A-1 and A-2 (each being herein called a
"Global Security") deposited with the Trustee, as custodian for The Depository
Trust Company ("DTC"), duly executed by the Company and authenticated by the
Trustee as hereinafter provided, and each shall bear the legend set forth on
Exhibit A. Subject to the limitation set forth in Section 2.02, the principal
amounts of the Global Securities may be increased or decreased from time to
time by adjustments made on the records of the Trustee, as custodian for DTC,
as hereinafter provided.
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Securities (including the notations thereon relating to the Subsidiary
Guarantees and the Trustee's certificate of authentication) originally issued
and sold in reliance on any exemption from registration under the Securities
Act other than Rule 144A shall be issued, and Securities originally offered and
sold in reliance on Rule 144A may be issued, in the form of permanent
certificated securities in registered form in substantially the form set forth
in Exhibits A and A-1 ("Physical Securities"). The Securities may also have
such insertions, omissions, substitutions and variations as may be permitted by
or consistent with this Indenture. The provisions of Exhibits A, A-1 and A-2
are part of this Indenture. The Securities may have notations, legends and
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
them, subject to the applicable requirements, if any, of Section 2.06. Each
Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities and the Subsidiary
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, 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.
The Series A Securities and the Series B Securities shall be considered
collectively to be a single class for all purposes of this Indenture,
including, without limitation, waivers, amendments, redemptions and offers to
purchase.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer and the Secretary or an Assistant Secretary of the Company
shall sign the Securities for the Company by manual or facsimile signature.
The Company's seal shall be reproduced on the Physical Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture. Each Security shall be dated the date of its
authentication.
The Trustee shall authenticate (i) the Series A Securities for original
issue on the Issue Date in the aggregate principal amount of $275,000,000 (the
"Original Securities"), (ii) additional Series A Securities for original issue
from time to time after the Issue Date in such principal amounts as may be set
forth in a written order of the Company described in this sentence and
(iii) the Series B Securities from time to time for issue only in exchange for
a like principal amount of Series A Securities, in each case upon a written
order of the Company signed by one Officer and the Secretary or an Assistant
Secretary of the Company, which written order shall specify (A) the amount of
Securities to authenticated and the date of original issue thereof, (B) whether
the Securities are Series A Securities or Series B Securities and (C) the
amount of Securities to be issued in global form or definitive form. The
aggregate principal amount of Securities outstanding at any time may not exceed
$275,000,000 plus such additional principal amounts as may be issued and
authenticated pursuant to clause (ii) of this paragraph, except as provided in
Section 2.08.
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At any time after the execution and delivery of this Indenture, the
Company may deliver Series A Securities executed by the Company and having the
notations of Subsidiary Guarantees executed by the Subsidiary Guarantors to the
Trustee for authentication, together with a request from the Company for the
authentication and delivery of such Series A Securities, and the Trustee in
accordance with such request shall authenticate and deliver such Series A
Securities with the notations of Subsidiary Guarantees thereon as provided in
this Indenture. Such request from the Company shall specify the principal
amount of the Series A Securities to be authenticated and the date on which the
original issue of Series A Securities is to be authenticated. In addition, on
or before an Exchange Offer Consummation Date, the Company may deliver Series B
Securities executed by the Company and having the notations of Subsidiary
Guarantees executed by the Subsidiary Guarantors to the Trustee for
authentication, together with a request from the Company for the authentication
and delivery of such Series B Securities, and the Trustee in accordance with
such request shall authenticate and deliver such Series B Securities with the
notations of Subsidiary Guarantees thereon as provided in this Indenture. Such
request from the Company shall specify the principal amount of the Series B
Securities to be authenticated and the date on which the Series B Securities
are to be exchanged for an equal principal amount of Series A Securities.
In connection with the transfer of an entire Global Security to
beneficial owners pursuant to this Section, the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall upon a request from the Company authenticate and
deliver, to each beneficial owner identified by DTC, in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.
The Holder of a Global Security may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so except on original issuance. 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
the Company or its Affiliates.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency designated pursuant to
Section 4.04 where Securities may be presented for registration of transfer or
for exchange (the "Registrar") and an office or agency designated pursuant to
Section 4.04 where Securities may be presented for payment (the "Paying
Agent"). The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. Such agency agreement shall provide for
reasonable compensation for such services. The agreement shall implement the
provisions of this Indenture that relate to such Agent and applicable
provisions of the TIA. The Company shall notify the Trustee of the name and
address of any such Agent and shall furnish the Trustee with an executed
counterpart of any such agency agreement. If the Company fails to maintain or
act as Registrar or Paying Agent, the Trustee shall act as such and shall be
duly compensated therefor.
The Registrar or a co-registrar and a Paying Agent shall be maintained
by the Company in the City of New York. The Company initially designates the
Trustee as the Registrar and Paying Agent.
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SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
On or before each due date of the principal, premium (if any) and
interest on any Security, the Company shall deposit with the Paying Agent
immediately available funds sufficient to pay such principal, premium (if any)
and interest becoming due. The Company shall require each Paying Agent other
than the Trustee to hold in trust for the benefit of Holders or the Trustee all
money held by such Paying Agent for the payment of principal, premium (if any)
or interest on the Securities, and to notify the Trustee of any Default by the
Company or any Subsidiary Guarantor in making any such payment. While any such
Default continues, the Trustee may require the Paying Agent to pay all money
held by it to the Trustee. Except as provided in the immediately preceding
sentence, the Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon doing so, such Paying Agent (other than the
Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary or any of their Affiliates acts as Paying Agent, it
shall segregate and hold as separate trust funds for the benefit of the Holders
and the Trustee all money held by it as Paying Agent.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the name and addresses of
Holders and shall otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company shall furnish or cause to be furnished to the
Trustee at least 5 Business Days before each semiannual 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 Holders, and the Company shall otherwise comply with TIA Section
312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
The Company shall cause to be kept a register (the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Securities and of transfers of
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. At all
reasonable times and during normal business hours, the Security Register shall
be open to inspection by the Trustee.
Subject to the provisions of this Section 2.06 and Section 2.07, upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 4.04, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of like tenor and of any
authorized denomination and of a like aggregate principal amount, each such
Security having the notation of Subsidiary Guarantees thereon.
Furthermore, any Holder of a Global Security shall, by acceptance of
such Global Security, be deemed to have agreed that transfers of beneficial
interests in such Global Security may be effected only through a book-entry
system maintained by DTC (or its agent), and that ownership of a beneficial
interest in a Global Security shall be required to be reflected in book-entry
form.
At the option of any Holder, Securities may be exchanged for other
Securities of like tenor and of any authorized denomination and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
the office or agency of the Company designated pursuant to Section 4.04.
Further, as provided in a Registration Rights Agreement and subject to the
limitations set forth therein, at the option of any Holder, Series A Securities
may be exchanged, pursuant to a corresponding Exchange Offer, for Series B
Securities of like aggregate principal amount, upon surrender of the Series A
Securities to be exchanged at such office or agency or otherwise pursuant to
such Exchange Offer.
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Whenever any Securities are so surrendered for exchange, the Company shall
execute, the Subsidiary Guarantors shall execute notations of Subsidiary
Guarantees on, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities and the Subsidiary Guarantees noted thereon issued upon
any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the respective Subsidiary Guarantors, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing. As a special condition to
registration of transfer or exchange of any Transfer Restricted Securities
involving removal of a Private Placement Legend (other than pursuant to an
effective registration statement under the Securities Act), the Holder
requesting such registration of transfer or exchange shall furnish the Opinion
of Counsel called for by Section 2.14. The following additional special
conditions shall apply to the indicated types of transfers or exchanges:
(a) Respecting any requested registration of transfer or
exchange of Transfer Restricted Securities in the form of Physical
Securities, such Physical Securities shall be accompanied, in the sole
discretion of the Company, by the following additional information and
documents, as applicable:
(1) if such Physical Security is being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect (in substantially the form of Exhibit A-3); or
(2) if such Physical Security is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under
the Securities Act, a certification to that effect (in
substantially the form of Exhibit A-3); or
(3) if such Physical Security is being transferred to
an Institutional Accredited Investor, delivery of a certification
to that effect (in substantially the form of Exhibit A-3), a
Transferee Certificate for Institutional Accredited Investors in
the form of Exhibit A-4 and an Opinion of Counsel to the effect
that such transfer is in compliance with the Securities Act; or
(4) if such Physical Security is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (substantially in the form of Exhibit A-3), a Transferor
Certificate for Regulation S Transfers in the form of Exhibit A-5
and an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act; or
(5) if such Physical Security is being transferred in
reliance on Rule 144, delivery of a certification to that effect
(substantially in the form of Exhibit A-3) and an Opinion of
Counsel to the effect that such transfer is in compliance with
the Securities Act; or
(6) if such Physical Security is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act, a certification to that
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effect (in substantially the form of Exhibit A-3) and an Opinion
of Counsel to the effect that such transfer is in compliance with
the Securities Act.
(b) Respecting any requested exchange of a Physical Security
for a beneficial interest in a Global Security, such Physical Security
shall be accompanied, in the sole discretion of the Company, by the
following additional information and documents:
(1) a certification, substantially in the form of
Exhibit A-3, that such Physical Security is being transferred to
a Qualified Institutional Buyer; and
(2) written instructions directing the Registrar to
make, or to direct DTC to make, an endorsement on the Global
Security to reflect an increase in the aggregate amount of the
Securities represented by the Global Security;
whereupon the Registrar shall cancel such Physical Security and cause,
or direct DTC to cause, in accordance with the standing instructions and
procedures existing between DTC and the Registrar, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly. If no Global Security is then outstanding, the
Company shall issue and the Trustee shall upon a request from the
Company authenticate a new Global Security in the appropriate amount.
(c) Any Person having a beneficial interest in a Global
Security may upon request to the Registrar exchange such beneficial
interest for a Physical Security. Upon receipt by the Registrar of
written instructions (or such other form of instructions as is customary
for DTC) from DTC or its nominee on behalf of any Person having a
beneficial interest in a Global Security and upon receipt by the
Registrar of a written order or such other form of instructions as is
customary for DTC or the Person designated by DTC as having such a
beneficial interest containing registration instructions and, in the
case of any such transfer or exchange of a beneficial interest in
Transfer Restricted Securities, the following additional information and
documents:
(1) if such beneficial interest is being transferred to
the Person designated by DTC as being the beneficial owner, a
certification from such Person to that effect (in substantially
the form of Exhibit A-3); or
(2) if such beneficial interest is being transferred to
a Qualified Institutional Buyer in accordance with Rule 144A
under the Securities Act, a certification to that effect (in
substantially the form of Exhibit A-3); or
(3) if such beneficial interest is being transferred to
an Institutional Accredited Investor, delivery of a certification
to that effect (substantially in the form of Exhibit A-3), a
Transferee Certificate for Institutional Accredited Investors in
the form of Exhibit A-4 and an Opinion of Counsel to the effect
that such transfer is in compliance with the Securities Act; or
(4) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (substantially in the form of Exhibit A-3), a Transferor
Certificate for Regulation S Transfers in the form of Exhibit A-5
and an Opinion of Counsel to the effect that such transfer is in
compliance with the Securities Act; or
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(5) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (substantially in the form of
Exhibit A-3) and an Opinion of Counsel to the effect that such
transfer is in compliance with the Securities Act; or
(6) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements
of the Securities Act, a certification to that effect (in
substantially the form of Exhibit A-3) and an Opinion of Counsel
to the effect that such transfer is in compliance with the
Securities Act,
then the Registrar will cause, in accordance with the standing
instructions and procedures existing between DTC and the Registrar, the
aggregate principal amount of the Global Security to be reduced and,
following such reduction, the Company will execute and, upon receipt of
a request from the Company, the Trustee will authenticate and deliver to
the transferee a Physical Security. Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this
Section 2.06(c) shall be registered in such names and in such authorized
denominations as DTC, pursuant to instructions from Agent Members or
otherwise, shall instruct the Registrar in writing. The Registrar shall
deliver such Physical Securities to the Persons in whose names such
Physical Securities are so registered.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to the Exchange Offer or Section
2.11, 3.06 or 9.05 not involving any transfer.
Neither the Trustee, the Registrar nor the Company shall be required
(i) to issue, register the transfer of or exchange any Physical Security during
a period of 30 days before a selection of Securities to be redeemed, or (ii) to
register the transfer of or exchange any Physical Security so selected for
redemption in whole or in part, except the unredeemed portion of any such
Security being redeemed in part.
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
Each Global Security shall be (i) registered in the name of DTC or its
nominee, (ii) delivered to the Trustee as custodian for DTC and (iii) bear the
legend set forth in Exhibit A-2.
Members of, or participants in, DTC ("Agent Members") shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by DTC, or the Trustee as its custodian, or under such Global Security,
and DTC may be treated by the Company, the Subsidiary Guarantors, the Trustee
and any agent of the Company, the Subsidiary Guarantors or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Subsidiary Guarantors, the Trustee or any agent of the Company, the Subsidiary
Guarantors or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by DTC or shall impair, as between DTC
and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any Security.
Transfers of a Global Security shall be limited to transfers of such
Global Security in whole, but not in part, to DTC, its successors or their
respective nominees. Interests of beneficial owners in a Global Security may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of DTC and the provisions of Section 2.06. In addition,
Physical Securities shall be
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transferred to all beneficial owners in exchange for their beneficial interests
in a Global Security if, and only if, either (1) DTC notifies the Company that
it is unwilling or unable to continue as depositary for the Global Security and
a successor depositary is not appointed by the Company within 90 days of such
notice, (2) an Event of Default has occurred and is continuing and the
Registrar has received a request from DTC to issue Physical Securities in lieu
of all or a portion of the Global Security (in which case the Company shall
deliver Physical Securities within 30 days of such request) or (3) the Company
determines not to have the Securities represented by the Global Security and
notifies DTC and the Registrar thereof.
In connection with the transfer of an entire Global Security to
beneficial owners pursuant to this Section, the Global Security shall be deemed
to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall upon request of the Company authenticate and
deliver, to each beneficial owner identified by DTC, in exchange for its
beneficial interest in the Global Security, an equal aggregate principal amount
of Physical Securities of authorized denominations.
The Holders of a Global Security may grant proxies or otherwise
authorize any Persons, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Securities.
SECTION 2.08. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or the Registrar
or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the requirements of the Trustee are met.
An indemnity bond may be required by the Trustee, the Company or any Subsidiary
Guarantor that is sufficient in the judgment of the Company, the Subsidiary
Guarantors and the Trustee to protect the Company, the Subsidiary Guarantors,
the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. The Company may charge for its expenses (including fees
and expenses of the Trustee) in replacing a Security.
SECTION 2.09. OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.09 as not outstanding.
Except as set forth in Section 2.10, a Security does not cease to be
outstanding because the Company, the Subsidiary Guarantors or any of their
respective Subsidiaries or Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding and interest on it ceases to accrue unless the Trustee receives
proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.
If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest on it ceases to accrue.
SECTION 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any Subsidiary Guarantor or an Affiliate of the Company shall
be considered as though they are not outstanding, except that for the
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purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Securities which the Trustee
actually knows are so owned shall be so disregarded.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities are ready for delivery, the Company may
prepare and, upon written order of the Company, the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate and deliver definitive
Securities in exchange for temporary Securities surrendered to it.
SECTION 2.12. CANCELLATION.
The Company or any Subsidiary Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee shall cancel all Securities surrendered for
registration or transfer, exchange, payment or cancellation and shall destroy
cancelled Securities or retain cancelled Securities in accordance with the
Trustee's standard retention policy unless the Company directs their return to
the Company. Except as provided in Section 2.08, the Company may not issue new
Securities to replace Securities that it has paid or delivered to the Trustee
for cancellation.
Securities that are mandatorily or optionally redeemed by the Company or
that are purchased by the Company pursuant to an Asset Sale Offer or a Change
of Control Offer, or that are otherwise acquired by the Company, will be
surrendered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Securities, it
shall pay the defaulted interest in any lawful manner (plus interest on such
defaulted interest to the extent lawful) to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the
Securities and in Section 4.01. The Company shall fix the special record date
and payment date. At least 10 days before the special record date, the Company
shall mail to each Holder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.14. PRIVATE PLACEMENT LEGEND.
(a) All Series A Securities originally issued hereunder shall bear
the Private Placement Legend. Upon the transfer, exchange or replacement of
Securities bearing the Private Placement Legend, the Registrar shall deliver
only Securities that bear the Private Placement Legend unless, and the Trustee
is hereby authorized to deliver Securities without the Private Placement Legend
if, (i) there is delivered to the Trustee an Opinion of Counsel to the effect
that neither such legend nor the related restrictions on transfer are required
in order to maintain compliance with the provisions of the Securities Act,
(ii) such Security has been sold pursuant to an effective registration
statement under the Securities Act, which fact has been certified to the
Trustee in an Officers' Certificate or (iii) notwithstanding the foregoing,
upon consummation of an Exchange Offer, the Company shall issue and the Trustee
shall authenticate Series B Securities in exchange for Series A Securities
accepted for exchange in the corresponding Exchange Offer, which Series B
Securities shall not bear the Private Placement Legend, and the Registrar shall
rescind any restriction on the transfer of such Securities, in each case unless
the Holder of such Series A Securities is either (A) a broker-dealer, (B) a
Person participating in the distribution of such Series A Securities or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company. Upon the
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transfer, exchange or replacement of Securities not bearing the Private
Placement Legend, the Registrar shall deliver Securities that do not bear the
Private Placement Legend.
(b) By its acceptance of any Security bearing the Private Placement
Legend, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
ARTICLE THREE
REDEMPTION
SECTION 3.01. NOTICE TO TRUSTEE.
If the Company elects to redeem Securities pursuant to the optional
redemption provisions of paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date, the redemption price and the
principal amount of Securities to be redeemed.
The Company shall give each notice provided for in this Section 3.01 at
least 35 days before the redemption date (unless a shorter notice period shall
be satisfactory to the Trustee). Any notice given pursuant to this Section
3.01 may be cancelled at any time prior to notice of such redemption being
mailed to any Holder and shall thereby be void and of no effect.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, the Trustee shall
select the Securities to be redeemed in multiples of $1,000 pro rata, by lot or
by any other method that the Trustee considers fair and appropriate and, if the
Securities are listed on any securities exchange, by a method that complies
with the requirements of such exchange. The Trustee shall make the selection
from outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the principal of Securities that have
denominations larger than $1,000. Securities and portions of them it selects
shall be in amounts of $1,000 or whole multiples of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly of the Securities or portions of Securities to be called for
redemption.
The provisions of the first paragraph of this Section 3.02 shall not
apply with respect to any redemption affecting only a Global Security, whether
such Global Security is to be redeemed in whole or in part. In case of any
such redemption in part, the unredeemed portion of the principal amount of the
Global Security shall be in an authorized denomination.
SECTION 3.03. NOTICE TO HOLDERS.
At least 30 days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to each Holder of
Securities to be redeemed at such Holder's registered address.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
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(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in the payment of the
redemption price or accrued interest, interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(6) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
redemption date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion will be
issued; and
(7) the subparagraph of paragraph 5 of the Securities pursuant
to which the Securities called for redemption are being redeemed.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of DTC or its successors applicable to redemption.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the redemption date
at the redemption price. Upon surrender to the Paying Agent, such Securities
shall be paid at the redemption price, plus accrued interest to the redemption
date. Failure to give notice or any defect in the notice to any Holder shall
not affect the validity of the notice to any Holder.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE.
On or before the redemption date, the Company shall deposit with the
Paying Agent immediately available funds sufficient to pay the redemption price
of, and accrued interest on, the Securities to be redeemed on that date. The
Paying Agent shall promptly return to the Company any money so deposited which
is not required for that purpose upon the written request of the Company,
except with respect to monies owed as obligations to the Trustee pursuant to
Article Seven.
If any Security called for redemption shall not be so paid upon
redemption because of the failure of the Company to comply with the preceding
paragraph, interest will continue to be payable on the unpaid principal,
including 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 Securities and in Section 4.01.
SECTION 3.06. SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is to be redeemed in part, the Company
shall issue and execute and the Trustee shall authenticate for the Holder a new
Security or Securities equal in aggregate principal amount to the unredeemed
portion of the Security surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of, and premium (if any) and
interest on, the Securities on the dates and in the manner provided in the
Securities and this Indenture. Principal of, and premium (if any) and interest
on, the Securities shall be considered paid on the date due if the Trustee or
Paying Agent holds on that date money deposited by the Company designated for
and sufficient to pay all principal, premium (if any) and interest then due.
The Company shall pay interest on overdue principal at the rate borne by
the Securities and shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
The Company shall notify the Trustee and any Paying Agent immediately
upon the occurrence of any Registration Default and, with respect to payments
of Additional Interest, the Company shall notify the Trustee and any Paying
Agent prior to the date of any interest payment of the amount of Additional
Interest payable to each Holder.
SECTION 4.02. SEC REPORTS.
Each of the Company and the Subsidiary Guarantors shall file with the
Trustee within 15 days after it files them with the SEC copies of the annual
reports and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which each of the Company and the Subsidiary Guarantors is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. If
the Company is not subject to the requirements of such Section 13 or 15(d) of
the Exchange Act, the Company shall file on a timely basis with the SEC, to the
extent such filings are accepted by the SEC and whether or not the Company has
a class of securities registered under the Exchange Act, the annual reports,
quarterly reports and other documents that the Company would be required to
file if it were subject to Section 13 or 15 of the Exchange Act. The Company
shall also file with the Trustee (with exhibits), and provide to each Holder of
Securities or, upon request, to as prospective Holder of Securities (without
exhibits), without cost to such Holder or prospective Holder, copies of such
reports and documents within 15 days after the date on which the Company files
such reports and documents with the SEC or the date on which the Company would
be required to file such reports and documents if the Company were so required
and, if filing such reports and documents with the SEC is not accepted by the
SEC or is prohibited under the Exchange Act, the Company shall supply, at its
cost, copies of such reports and documents (including any exhibits thereto) to
any Holder of Securities promptly upon written request. The Company and each
of the Subsidiary Guarantors also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.03. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company, 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
Officer or Officers, as applicable, with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of such Officer's knowledge the Company has kept,
observed, performed and fulfilled each and every covenant contained in this
Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions hereof (or, if a Default or
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Event of Default shall have occurred, describing all such Defaults or Events of
Default of which such Officer may have knowledge and what action the Company is
taking or proposes to take with respect thereto) and that to the best of such
Officer's knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the
Securities are prohibited. Such Officers' Certificate shall comply with TIA
Section 314(a)(4).
(b) The Company and the Subsidiary Guarantors will, so long as any of
the Securities are outstanding, deliver to the Trustee forthwith upon any
Officer becoming aware of any Default or Event of Default or default in the
performance of any covenant, agreement or condition contained in this
Indenture, an Officers' Certificate specifying such Default or Event of Default
and what action the Company or any Subsidiary Guarantor proposes to take with
respect thereto.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. Until otherwise designated
by the Company to the Trustee, the Company's office or agency in the City of
New York for the foregoing purposes will be the office of the Trustee
maintained for such purpose. 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 address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the City of New
York for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 4.05. CORPORATE EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Material
Subsidiary in accordance with the respective organizational documents of the
Company and each Material Subsidiary and the material rights (charter and
statutory) and material franchises of the Company and the Material
Subsidiaries; provided, that the Company shall not be required to preserve any
such right or franchise, or the corporate existence of any Material Subsidiary,
if the Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company
and that the loss thereof is not, and foreseeably will not be, adverse to the
payment and performance of the obligations under the Securities and otherwise
under this Indenture.
SECTION 4.06. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company and each Subsidiary Guarantor covenants (to the extent that
each may lawfully do so) that it will 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 or other law, which would prohibit or forgive the
Company or any Subsidiary Guarantor from paying all or any portion of the
principal of and/or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
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lawfully do so) the Company and each Subsidiary Guarantor hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 4.07. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company and each Material Subsidiary will pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Material Subsidiary or upon the income, profits or property of the
Company or any Material Subsidiary other than any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate provision has been
made in accordance with GAAP, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a Lien (other than a
Permitted Lien) upon the property of the Company or any Material Subsidiary, in
each case except to the extent the failure to do so would have, in the judgment
of the Company, a material adverse effect on the Company and the Subsidiaries
taken as a whole.
SECTION 4.08. MAINTENANCE OF PROPERTIES AND INSURANCE.
(a) The Company shall cause all material Property used or useful in
the conduct of its business or the business of any Subsidiary to be maintained
and kept in good condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment and shall cause to be made
all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from discontinuing the operation or
maintenance of any such Property, or disposing of it, if such discontinuance or
disposal is, in the judgment of the Company or such Subsidiary, desirable in
the conduct of its business and not adverse to the payment and performance of
the obligations under the Securities and otherwise under this Indenture.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the reasonable, good faith opinion
of the Company are adequate and appropriate for the conduct of the business of
the Company and such Subsidiaries in a prudent manner, with reputable insurers
or with the government of the United States or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be either (i) consistent with past practices of the Company or the applicable
Subsidiary or (ii) customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry, unless the
failure to provide such insurance (together with all other such failures) would
not have a material adverse effect on the financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole.
SECTION 4.09. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS.
The Company will not, and will not permit any of the Subsidiaries to
directly or indirectly, issue, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to or otherwise become responsible for
the payment of (collectively, "incur") any Indebtedness (other than Permitted
Indebtedness); provided, however, that if no Default or Event of Default with
respect to the Securities shall have occurred and be continuing at the time or
as a consequence at the incurrence of such Indebtedness, the Company may incur
Indebtedness and any Subsidiary may incur Indebtedness, if on
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the date of the incurrence, the Company's Consolidated EBITDA Coverage Ratio
would have been greater than 2.0 to 1.0.
For purposes of determining any particular amount of Indebtedness
incurred under this Section 4.09, (i) guarantees by the Company or any of the
Subsidiaries of Indebtedness of the Company or any of the Subsidiaries
otherwise included in the determination of such amount shall not also be
included, and (ii) any Indebtedness of the Company or any Subsidiary incurred
for, or related to, a Person other than another Subsidiary or the Company, as
applicable, shall be deemed to be in an amount equal to the greater of (a) the
lesser of (1) the full amount of the Indebtedness of such other Person or
(2) the fair market value of the assets and properties of the Company or such
Subsidiary, as to which the holder or holders of such Indebtedness are
expressly limiting the obligations of the Company or such Subsidiary, the value
of which assets and properties of the Company or any Subsidiary will be
determined in good faith by the Board of Directors of the Company or such
Subsidiary, as applicable (which determination shall be evidenced by a Board
Resolution of the applicable Person), and (b) the amount of the Indebtedness of
such other Person as has been expressly contractually assumed or guaranteed by
the Company or such Subsidiary.
Notwithstanding anything to the contrary in this Section 4.09, no
Subsidiary that is not already a Subsidiary Guarantor shall incur any
Indebtedness with respect to any Indebtedness of the Company or any other
Subsidiary unless such Subsidiary, the Company and the Trustee execute and
deliver a supplemental indenture evidencing such Subsidiary Guarantor's
Subsidiary Guarantee of the Securities, such Subsidiary Guarantee to be a
senior unsecured obligation of such Subsidiary.
SECTION 4.10. LIMITATION ON SUBORDINATED INDEBTEDNESS.
Neither the Company nor any Subsidiary Guarantor may, directly or
indirectly, in any event incur any Indebtedness that by its terms (or by the
terms of any agreement governing such Indebtedness) is subordinated to any
other Indebtedness of the Company or such Subsidiary Guarantor, as the case may
be, unless such Indebtedness is also by its terms (or by the terms of any
agreement governing such Indebtedness) made expressly subordinate to the
Securities or the Subsidiary Guarantee of such Subsidiary Guarantor, as the
case may be, to the same extent and in the same manner as such Indebtedness is
subordinated pursuant to subordination provisions that are most favorable to
the holders of any other Indebtedness of the Company or such Subsidiary
Guarantor, as the case may be.
SECTION 4.11. LIMITATION ON RESTRICTED PAYMENTS.
The Company will not, and will not permit any of the Subsidiaries to,
directly or indirectly, make any Restricted Payment, if at the time of such
Restricted Payment, or on a pro forma basis after giving effect thereto:
(x) a Default or an Event of Default under this Indenture has
occurred and is continuing;
(y) the aggregate amount expended for all Restricted Payments
subsequent to the Issue Date exceeds the sum of (without duplication):
(1) 50% of aggregate Consolidated Net Income of the
Company (or if such Consolidated Net Income is a loss, minus 100%
of such loss) earned on a cumulative basis during the period
beginning on the first day of the month containing the Issue Date
and ending on the last date of the Company's fiscal quarter
immediately preceding such Restricted Payment; plus
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(2) 100% of the aggregate Net Proceeds received by the
Company from any Person other than a Subsidiary from the issuance
and sale subsequent to the Issue Date of Qualified Capital Stock
(excluding (A) any Qualified Capital Stock paid as a dividend on
any Capital Stock or as interest on any Indebtedness, (B) the
issuance of Qualified Capital Stock upon the conversion of, or in
exchange for, any Qualified Capital Stock and (C) any Qualified
Capital Stock with regard to issuances and sales financed
directly or indirectly using funds borrowed from the Company or
any Subsidiary, until and to the extent such borrowing is
repaid); plus
(3) to the extent not otherwise included in
Consolidated Net Income, dividends, repayments of loans or
advances, or other transfers of assets, in each case to the
Company or a Subsidiary after the date of this Indenture from any
Unrestricted Subsidiary or from the redesignation of an
Unrestricted Subsidiary as a Subsidiary (valued in each case as
provided in the definition of Investment) other than amounts
constituting Permitted Unrestricted Subsidiary Investments; and
(4) $5.0 million; or
(z) the Company would not be able to incur $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) as provided in the first
paragraph of Section 4.09.
The foregoing provisions of this covenant will not prevent the payment
of any dividend within 60 days after the date of its declaration if the
dividend would have been permitted on the date of declaration; provided,
however, that payments made in accordance with this paragraph shall be counted
for purposes of computing amounts expended pursuant to subclause (y) in the
immediately preceding paragraph.
SECTION 4.12. LIMITATION ON ASSETS SALES.
The Company may not, and may not permit any of its Subsidiaries to,
engage in an Asset Sale unless:
(i) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced by a resolution of the Board of Directors set
forth in an Officers' Certificate delivered to the Trustee for an Asset
Sale or series of related Asset Sales involving assets of the Company or
its Subsidiaries having an aggregate value of more than $5.0 million) of
the assets or Capital Stock issued or sold or otherwise disposed of and
(ii) the consideration therefor received by the Company or such
Subsidiary is in the form of cash and Cash Equivalents or Permitted
Industry Investments;
provided that the amount of any liabilities (as shown on the Company's or such
Subsidiary's most recent balance sheet) of the Company or any Subsidiary (other
than contingent liabilities and liabilities that are by their terms
subordinated to the Securities or the Subsidiary Guarantees) that are assumed
by the transferee of any such assets pursuant to a customary novation agreement
that releases the Company or such Subsidiary from further liability shall be
deemed to be cash for purposes of this provision (but shall not be deemed to be
"Excess Proceeds" as defined below); and provided further, that the Company or
such Subsidiary may accept proceeds from such Asset Sale in other than cash and
Cash Equivalents or Permitted Industry Investments or any combination of the
foregoing if the aggregate amount of all proceeds from all Asset Sales after
the Issue Date that are other than cash, Cash Equivalents or Permitted
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Industry Investments after such Asset Sale, does not exceed 15% of Consolidated
Net Tangible Assets at the date of such Asset Sale.
Within 365 days after the receipt of any Net Available Proceeds from any
Asset Sale, the Company (or the Subsidiary, as the case may be) may:
(i) apply all or any part of the Net Available Proceeds
therefrom to repay Senior Indebtedness of the Company or Guarantor
Senior Indebtedness of a Subsidiary Guarantor or
(ii) invest all or any part of the Net Available Proceeds
thereof in Permitted Industry Investments made by the Company or a
Subsidiary or, to the extent not so applied during such 365-day period,
to such investments specifically identified during such 365-day period
reasonably anticipated in good faith by the Board of Directors of the
Company to be expended within 180 days after being specifically
identified (such 180-day period, the "Project Period").
Pending the final application of any such Net Available Proceeds, the Company
may temporarily reduce borrowings under any revolving credit facility or
otherwise invest such Net Available Proceeds in any manner that is not
prohibited by this Indenture. Any Net Available Proceeds from Asset Sales
occurring on or after the Issue Date that are not applied or invested within
365 days of the receipt thereof (or if later, within 35 Business Days following
an applicable Project Period) as provided in the first sentence of this
paragraph will be deemed to constitute "Excess Proceeds". When the aggregate
amount of Excess Proceeds equals or exceeds $10.0 million (the date of such
occurrence, the "Asset Sale Offer Trigger Date"), the Company shall make an
offer to all Holders of Securities (an "Asset Sale Offer") to purchase the
maximum principal amount of Securities that may be purchased out of such Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount thereof, plus accrued and unpaid interest thereon to the date of
purchase in accordance with the procedures set forth below in this Section 4.12
and Additional Interest (if any) as set forth in an in force Registration
Rights Agreement; provided, however, that, if the Company is required to apply
such Excess Proceeds to repurchase, or to offer to repurchase, any Pari Passu
Indebtedness, the Company shall only be required to offer to repurchase the
maximum principal amount of Securities that may be purchased out of the amount
of such Excess Proceeds multiplied by a fraction, the numerator of which is the
aggregate principal amount of Securities outstanding and the denominator of
which is the aggregate principal amount of Securities outstanding plus the
aggregate principal amount of Pari Passu Indebtedness outstanding. To the
extent that the aggregate amount of Securities and Pari Passu Indebtedness
tendered pursuant to an Asset Sale Offer is less than the amount that the
Company is required to repurchase, the Company may use any of such remaining
Excess Proceeds for general corporate purposes. Upon completion of such Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
The Company will not enter into or suffer to exist or permit any
Subsidiary to enter into or suffer to exist any agreement that would place any
restriction of any kind (other than pursuant to law or regulation) on the
ability of the Company to make an Asset Sale Offer following any Asset Sale.
In the event that, pursuant to this Section 4.12, the Company shall be
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
(a) The Asset Sale Offer shall be made to all Holders and
shall remain open for a period of at least 20 Business Days following
its commencement (after giving effect, to the extent provided above in
this Section 4.12, to any then outstanding Pari Passu Indebtedness, the
"Offer Period").
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(b) If the Asset Sale Offer Purchase Date is on or after an
interest record date and on or before the related interest payment date,
any accrued and unpaid interest thereon, if any (including, if any,
Additional Interest), shall be paid to the Person in whose name a
Security is registered at the close of business on such record date, and
no additional interest shall be payable to Holders who tender Securities
pursuant to the Asset Sale Offer.
(c) Within 10 Business Days following any Asset Sale Offer
Trigger Date, the Company shall send, by first class mail, a notice to
each of the Holders at such Holder's registered address, with a copy to
the Trustee. The notice, which shall govern the terms of the Asset Sale
Offer, shall contain all instructions and materials necessary to enable
such Holders to tender Securities pursuant to the Asset Sale Offer, and
shall state:
(1) (A) that the Asset Sale Offer Trigger Date has
occurred pursuant to Section 4.12, and that the Company is
offering to purchase the maximum principal amount of Securities
that may be purchased out of the Excess Proceeds (after giving
effect, to the extent provided above in this Section 4.12, to any
then outstanding Pari Passu Indebtedness, the "Offer Amount") 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 (including, if any, Additional Interest), to the
date of purchase, which shall be a Business Day (the "Asset Sale
Offer Purchase Date") that is not earlier than 30 Business Days
nor later than 60 Business Days from the date such notice is
mailed, unless otherwise required by applicable law and (B) the
amount of the Offer Amount and the date of the Asset Sale Offer
Purchase Date;
(2) the amount of accrued and unpaid interest, if any
(including, if any, Additional Interest), as of the Asset Sale
Offer Purchase Date;
(3) that any Securities or portions thereof subject to
the Asset Sale Offer not tendered or accepted for payment shall
continue to accrue interest;
(4) that, unless the Company defaults in the payment of
the purchase price for the Securities payable pursuant to the
Asset Sale Offer, any such Securities or portions thereof
accepted for payment pursuant to the Asset Sale Offer shall cease
to accrue interest after the Asset Sale Offer Purchase Date;
(5) that Holders electing to have any Securities or
portions thereof purchased pursuant to any Asset Sale Offer shall
be required to surrender such Securities, duly endorsed for
transfer with the form entitled "Option of Holder to Elect
Purchase" on the reverse of such Securities completed, to the
Company or a Paying Agent at the address specified in the notice
at least 3 Business Days before the Asset Sale Offer Purchase
Date;
(6) that Holders shall be entitled to withdraw their
election if the Company or the Paying Agent, as the case may be,
receives, before the expiration of the Offer Period, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder delivered for
purchase and a statement that such Holder is withdrawing its
election to have such Securities or portions thereof purchased;
(7) that, if (A) the aggregate principal amount of
Securities surrendered by Holders exceeds the Offer Amount or
(B) less than all of the Securities tendered pursuant
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to the Asset Sale Offer are accepted for payment by the Company
for any reason consistent with this Indenture, the Trustee shall
select the Securities to be purchased in compliance with the
requirements of the principal national securities exchange, if
any, on which the Securities are listed or, if the Securities are
not so listed, on a pro rata basis, by lot or by such method as
the Trustee deems fair and appropriate; provided that Securities
accepted for payment in part will only be purchased in integral
multiples of $1,000; and
(8) that Holders whose Securities were purchased only
in part shall be issued new Securities equal in principal amount
to the unpurchased portion of the Securities surrendered.
(d) If any of the Securities subject to an Asset Sale Offer is
held of record by DTC, then (x) the Company shall modify such notice to
the extent necessary to accord with the procedures of DTC applicable to
repurchases, (y) the Company or its designated agent may accept as
tendered for repurchase pursuant to this Section 4.12 Securities
tendered by means of book entry in accordance with normal procedures of
DTC and (z) the Trustee will return to the Holder of a Global Security
that is being purchased in part, such Global Security with a notation
duly noted on it adjusting the principal amount thereof to be equal to
the unpurchased portion of such Global Security.
(e) On the Asset Sale Offer Purchase Date, the Company shall:
(i) accept for payment the maximum principal amount of Securities or
portions thereof tendered pursuant to the Asset Sale Offer that can be
purchased out of the Excess Proceeds, (ii) deposit with the Paying Agent
the aggregate purchase price of all Securities or portions thereof
accepted for payment and (iii) deliver or cause to be delivered to the
Trustee all Securities tendered pursuant to the Asset Sale Offer. The
Company or the Paying Agent, as the case may be, shall promptly mail to
each Holder of Securities or portions thereof accepted for payment an
amount equal to the purchase price for such Securities, and the Company
will execute and the Trustee shall promptly authenticate and mail to any
such Holder of Securities accepted for payment in part a new Security
equal in principal amount to any unpurchased portion of the Securities,
and any Security not accepted for payment in whole or in part shall be
promptly returned to the Holder of such Security. The Company shall
announce the results of the Asset Sale Offer to Holders of the
Securities on or as soon as practicable after the Asset Sale Offer
Purchase Date. The Company shall comply with the requirements of
Rule 14e-1 under the Exchange Act, and any other securities laws or
regulations thereunder, if applicable, in connection with any Asset Sale
Offer.
SECTION 4.13. LIMITATION ON LIENS SECURING INDEBTEDNESS.
The Company will not, and will not permit any of the Subsidiaries to,
create, incur, assume or suffer to exist any Liens (other than Permitted Liens)
upon any of their respective Properties securing (i) any Indebtedness of the
Company, unless the Securities are equally and ratably secured or (ii) any
Indebtedness of any Subsidiary Guarantor, unless the Securities or the
Subsidiary Guarantees, as the case may be, are equally and ratably secured;
provided that if such Indebtedness is expressly subordinated to the Securities
or the Subsidiary Guarantees, the Lien securing such Indebtedness will be
subordinated and junior to the Lien securing the Securities or the Subsidiary
Guarantees, with the same relative priority as such subordinated Indebtedness
will have with respect to the Securities or the Subsidiary Guarantees, as the
case may be.
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SECTION 4.14. LIMITATION ON PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company will not, and will not permit any Subsidiary to, directly or
indirectly, create or suffer to exist or allow to become effective any
consensual encumbrance or restriction of any kind (i) on the ability of any of
the Subsidiaries (a) to pay dividends or make other distributions on its
Capital Stock or make payments on any Indebtedness owed to the Company or any
other Subsidiary, (b) to make loans or advances to the Company or any other
Subsidiary, or (c) to transfer any of its Property to the Company or any other
Subsidiary, or (ii) on the ability of such Person or any other subsidiary of
such Person to receive or retain any such (a) dividends, distributions or
payments, (b) loans or advances, or (c) transfers of Property (any such
restriction being referred to herein as a "Payment Restriction"), except for
such encumbrances or restrictions existing under or by reason of (1) the Credit
Facility as in effect from time to time, (2) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Company or any Subsidiary, (3) any instrument governing Indebtedness of a
Person acquired by the Company or a Subsidiary at the time of such acquisition,
which encumbrance or restriction is not applicable to any Person, other than
the Person, or the Property of the Person, so acquired, provided that such
Indebtedness was not incurred in anticipation of such acquisition, (4) with
respect to clauses (i)(c) and (ii)(c) above, Purchase Money Obligations for
Property acquired in the ordinary course of business, (5) Indebtedness existing
pursuant to a written agreement in effect on the date of this Indenture,
(6) Indebtedness under this Indenture, or (7) Indebtedness incurred to
refinance, refund, extend or renew Indebtedness referred to in clauses (1),
(3), (4) or (5) above; provided that the Payment Restrictions contained therein
are not materially more restrictive than those provided for in the Indebtedness
being refinanced, refunded, extended or renewed.
SECTION 4.15. LIMITATION ON TRANSACTIONS WITH RELATED PERSONS.
Neither the Company nor any of the Subsidiaries will (i) sell, lease,
transfer or otherwise dispose of any of its Property to, (ii) purchase any
property from, (iii) make any Investment (other than Permitted Unrestricted
Subsidiary Investments and other Investments that do not breach the provisions
of Section 4.11) in, or (iv) enter into any contract or agreement with or for
the benefit of, a Related Person of the Company or any Subsidiary (other than
the Company or any such Subsidiary in which no Related Person (other than the
Company or another Wholly Owned Subsidiary) owns, directly or indirectly, an
equity interest) (a "Related Party Transaction"), unless (a) such Related Party
Transaction or series of associated Related Party Transactions is on terms that
are no less favorable to the Company or such Subsidiary, as the case may be,
than those that could be obtained in a comparable arm's length transaction with
an unrelated third party, (b) with respect to any Related Party Transaction or
series of associated Related Party Transactions involving aggregate payments in
excess of $1.0 million, the Company delivers, within 30 days of such Related
Party Transaction or series of associated Related Party Transactions, an
Officers' Certificate to the Trustee certifying that such Related Party
Transaction or series of associated Related Party Transactions complies with
the immediately preceding clause (a), and (c) with respect to a Related Party
Transaction or series of associated Related Party Transactions involving
payments of $5.0 million or more, the Company delivers, within 30 days of such
Related Party Transaction or series of associated Related Party Transactions,
an Officers' Certificate to the Trustee certifying that (1) such Related Party
Transaction or series of associated Related Party Transactions complies with
clause (a) above and (2) such Related Party Transaction or series of associated
Related Party Transactions has been approved by a majority of the independent
directors of the Company. Notwithstanding anything to the contrary in the
foregoing, the foregoing restrictions shall not apply to (A) Related Party
Transactions that are approved by the Board of Directors of the Company and
such Subsidiary, if applicable, as in the best interests of the Company or such
Subsidiary, which transactions together with all other Related Party
Transactions in a related series involve or have an aggregate value not
exceeding $1.0 million in each fiscal year, (B) fees and compensation paid to
or agreements with officers, directors, employees or consultants of the Company
or any Subsidiary, in each case that are
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reasonable, as determined by the Board of Directors or senior management
thereof in good faith; (C) Employee Stock Repurchases, (D) transactions
described under the heading "Certain Relationships and Related Transactions" in
the Offering Circular of the Company dated August 14, 1997, relating to the
issuance of the Securities, and (E) Restricted Payments that are not prohibited
by the provision of Section 4.11.
SECTION 4.16. LIMITATION ON CONDUCT OF BUSINESS.
The Company and the Subsidiaries will be operated in a manner such that
their business activities will be in the oilfield services business and related
products and services, including, but not limited to, (i) rental of downhole
tools, general oil field equipment, petrochemical equipment and industrial and
other equipment (which may include equipment not used in the oil and gas
industry), (ii) drilling services, (iii) pipeline testing services, and
(iv) such other businesses as are reasonably necessary or desirable to
facilitate the conduct and operations of the foregoing businesses.
SECTION 4.17. CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall
make an offer to purchase all of the then outstanding Securities (a "Change of
Control Offer") from the Holders of such Securities, at a purchase price (the
"Change of Control Purchase Price") in cash equal to 101% of the aggregate
principal amount of such Securities, plus accrued and unpaid interest, if any,
to the Change of Control Purchase Date (as defined below), in accordance with
the procedures set forth in paragraphs (b), (c) and (d) of this Section. The
Company shall, subject to the provisions described below, be required to
purchase all Securities properly tendered pursuant to a Change of Control Offer
and not withdrawn.
(b) The Change of Control Offer shall remain open for at least 20
Business Days and until the close of business on the fifth Business Day prior
to the Change of Control Purchase Date (as defined below) and in any event, for
such period as required by applicable law.
(c) Not later than the 30th day following the occurrence of a Change
of Control, the Company shall mail to the Trustee and to each Holder of the
Securities a notice (the "Change of Control Notice") stating:
(1) that a Change in Control has occurred and that such Holder
has the right to require the Company to repurchase such Holder's
Securities, or portion thereof, at the Change of Control Purchase Price;
(2) any information regarding such Change of Control required
to be furnished pursuant to Section 14(e) of the Exchange Act and any
other applicable securities laws and regulations thereunder;
(3) a purchase date (the "Change of Control Purchase Date")
which shall be on a Business Day and no earlier than 30 days nor later
than 60 days after the occurrence of the Change of Control;
(4) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(5) that unless the Company defaults in making payments
therefor, or payment is otherwise prevented, any Security, or portion
thereof, accepted for payment pursuant to the
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Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date; and
(6) the instructions a Holder must follow in order to have his
Securities repurchased in accordance with paragraph (d) of this
Section 4.17.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right.
(d) To exercise the repurchase right, the Holder must deliver, on or
before the fifth calendar day prior to the Change of Control Purchase Date,
written notice to the Company (or an agent designated by the Company for such
purpose) of the Holder's exercise of such right, together with (i) the Security
or Securities with respect to which the right is being exercised, duly endorsed
for transfer with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, and (ii) if the Change of Control Purchase
Date falls between any record date for the payment of interest on the
Securities and the next succeeding interest payment date, an amount equal to
the interest which the Holder is entitled to receive on such interest payment
date; provided, however, that with respect to Securities held of record by DTC,
(y) the Company shall modify such notice to the extent necessary to accord with
the procedures of DTC applicable to repurchases, and (z) the Company or its
designated agent may accept as tendered for repurchase pursuant to this
Section 4.17 Securities tendered by means of a book entry in accordance with
the normal procedures of DTC, provided that any such interest amount shall be
delivered by the Holder to the Company or its designated agent.
Notwithstanding the foregoing, if prior to the date that a Change of Control
Notice is required to be mailed, a notice of optional redemption of all of the
outstanding Securities has been mailed in accordance with the terms of this
Indenture, the Company's obligation to send the Change of Control Notice shall
be suspended (unless the Company shall default in the payment of the redemption
price or accrued interest).
(e) On the Change of Control Purchase Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Notice, (ii) if the Company appoints a depository or Paying
Agent, deposit with such depository or Paying Agent money sufficient to pay the
purchase price of all Securities or portions thereof so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate stating the Securities or portions thereof tendered to the Company.
DTC, the Company or the Paying Agent, as the case may be, shall promptly mail
to the Holder of Securities so accepted payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and mail to such
Holders of Physical Securities a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Change of Control Offer on or as soon as
practicable after the Change of Control Purchase Date. For purposes of this
Section 4.17, the Trustee shall act as the Paying Agent.
(f) The Company, to the extent applicable and if required by law,
will comply with Sections 13 and 14 of the Exchange Act and the provisions of
Regulation 14E and any other tender offer rules under the Exchange Act and any
other federal and state securities laws, rules and regulations which may then
be applicable to any offer by the Company to purchase the Securities pursuant
to the provisions of this Section 4.17.
(g) The Company shall not be required to make a Change of Control
Offer following a Change of Control if a third party makes the Change of
Control Offer in the manner, at the time and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control
Offer made by the Company and purchases all Securities validly tendered and not
withdrawn under such Change of Control Offer.
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SECTION 4.18. SALE-AND-LEASEBACK TRANSACTIONS.
The Company will not, and will not permit any Subsidiaries to, enter
into any sale-and-leaseback transaction; provided that the Company or any
Subsidiary, as applicable, may enter into a sale-and-leaseback transaction if
(i) the Company could have (a) incurred Indebtedness in an amount equal to the
Attributable Indebtedness relating to such sale-and-leaseback transaction
pursuant to the Consolidated EBITDA Coverage Ratio test set forth in the first
paragraph of Section 4.09 and (b) created a Lien to secure such Indebtedness
pursuant to Section 4.13, (ii) the fair market value of the consideration of
such sale-and-leaseback transaction is at least equal to the fair market value
(as determined in good faith by the Board of Directors and set forth in an
Officers' Certificate delivered to the Trustee) of the Property that is the
subject of such sale-and-leaseback transaction, and (iii) the transfer of
assets in such sale-and-leaseback transaction is permitted by, and the Company
applies the proceeds of such transaction in compliance with, Section 4.12.
SECTION 4.19. ISSUANCES AND SALES OF CAPITAL STOCK OF WHOLLY OWNED
SUBSIDIARIES.
The Company (i) may not, and may not permit any Wholly Owned Subsidiary
to, transfer, convey, sell or otherwise dispose of any Capital Stock of any
Wholly Owned Subsidiary to any Person (other than the Company or a Wholly Owned
Subsidiary), unless (a) such transfer, conveyance, sale or other disposition is
of all the Capital Stock of such Wholly Owned Subsidiary and (b) the cash Net
Available Proceeds from such transfer, conveyance, sale or other disposition
are applied in accordance with Section 4.12, and (ii) may not permit any Wholly
Owned Subsidiary of the Company to issue any of its Capital Stock or any
warrants, options or other rights to acquire Capital Stock (but excluding any
debt security that is convertible into, or exchangeable for, Capital Stock) to
any Person other than to the Company or a Wholly Owned Subsidiary; except, in
the case of both clauses (i) and (ii) in this Section 4.19, with respect to
dispositions or issuances by a Wholly Owned Subsidiary of the Company as
contemplated in clauses (i) and (ii) of the definition of "Wholly Owned
Subsidiary".
SECTION 4.20. REGISTRATION RIGHTS AGREEMENT.
The Company will comply with all of the terms and provisions of each
Registration Rights Agreement, including, without limitation, its obligation to
pay Additional Interest (as defined therein) and to notify the Trustee
immediately of the occurrence of any Registration Default (as defined therein)
thereunder.
SECTION 4.21. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the corresponding Registration Rights
Agreement and shall pay all costs and expenses (including attorneys' fees for
the Company and the Trustee) incurred in connection therewith. In connection
with any such qualification of this Indenture under the TIA, the Trustee shall
be entitled to receive from the Company any such Officers' Certificates,
Opinions of Counsel or other documentation as it may reasonably request.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with any Person or
convey, transfer or lease all or substantially all of its Property to any
Person, unless:
(1) the Company survives such merger or the Person formed by
such consolidation or into which the Company is merged or that acquires
by conveyance or transfer, or which leases, all or substantially all of
the Property of the Company is a Person organized and existing under the
laws of the United States of America, any State thereof or the District
of Columbia and expressly assumes, by supplemental indenture, the due
and punctual payment of the principal of, and premium, if any, and
interest on all the Securities and the performance of every other
covenant and obligation of the Company under this Indenture;
(2) immediately before and after giving effect to such
transaction no Default or Event of Default exists;
(3) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Company (or, if not
the Company, the surviving or transferee entity) is equal to or greater
than the Consolidated Net Worth of the Company immediately before such
transaction; and
(4) immediately after giving effect to such transaction on a
pro forma basis, the Company (or, if not the Company, the surviving or
transferee entity) would be able to incur $1.00 of additional
Indebtedness (excluding Permitted Indebtedness) under the test described
in the first paragraph of Section 4.09.
The Company shall deliver to the Trustee prior to the consummation of
the proposed transaction an Officers' Certificate to the foregoing effect and
an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation, merger, conveyance, lease or transfer in
accordance with Section 5.01, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, lease or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor had been named as the Company herein, and thereafter
(except in the case of a lease) the predecessor corporation will be relieved of
all further obligations and covenants under this Indenture and the Securities.
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ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs upon:
(1) default in the payment of principal of, or premium, if
any, on, the Securities when due at maturity, upon repurchase, upon
acceleration or otherwise, including failure of the Company to
repurchase the Securities required to be repurchased, at the required
purchase price, upon a Change of Control or an Asset Sale Offer, and
failure to make, when due, any optional redemption payment;
(2) default in the payment of any installment of interest on
the Securities when due (including any interest payable in connection
with optional redemption payments) and continuance of such default for
30 days;
(3) default on any other Indebtedness of the Company, any
Subsidiary Guarantor or any other Subsidiary if either (a) such default
results from the failure to pay principal of, premium, if any, or
interest on, any such Indebtedness when due in excess of $5.0 million
and continuance of such default beyond any applicable cure, forbearance
or notice period, or (b) as a result of such default, the maturity of
such Indebtedness has been accelerated prior to its scheduled maturity,
without such default and acceleration having been rescinded or annulled
within a period of 10 days, and the principal amount of such
Indebtedness, together with the principal amount of any other such
Indebtedness in default, or the maturity of which has been so
accelerated, aggregates $5.0 million or more;
(4) default in the performance, or breach, of any other
covenant of the Company or any Subsidiary Guarantor in this Indenture
and failure to remedy such default within a period of 45 days after
written notice thereof from the Trustee or Holders of 25% in principal
amount of the outstanding Securities;
(5) the entry by a court of one or more judgments or orders
against the Company, any Subsidiary Guarantor or any other Subsidiary in
an aggregate amount in excess of $5.0 million and which are not covered
by insurance written by third parties that has not been vacated,
discharged, satisfied or stayed pending appeal within 60 days from the
entry thereof;
(6) a Subsidiary Guarantee by a Subsidiary Guarantor that is a
Material Subsidiary shall cease to be in full force and effect (other
than a release of a Subsidiary Guarantee by designation of such
Subsidiary Guarantor as an Unrestricted Subsidiary or as otherwise
provided under this Indenture in connection with the sale, liquidation
or other transfer of such Subsidiary Guarantor) or any Subsidiary
Guarantor shall deny, disaffirm or seek to revoke its obligations with
respect thereto;
(7) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
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(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(D) makes a general assignment for the benefit of its
creditors, or
(E) admits in writing that it generally is unable to
pay its debts as the same become due; or
(8) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief (with respect to the petition
commencing such case) against the Company or any Material
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of its respective
Property, or
(C) orders the liquidation of the Company or any
Material Subsidiary, and the order or decree remains unstayed and
in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
SECTION 6.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified in
clauses (7) and (8) of Section 6.01) under Section 6.01 occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the outstanding Securities may declare the
unpaid principal of (or the Change of Control Purchase Price if the Event of
Default includes failure to pay the Change of Control Purchase Price), and
accrued and unpaid interest on, all the Securities then outstanding to be due
and payable, by a notice in writing to the Company (and to the Trustee, if
given by Holders) and upon any such declaration such principal amount, premium,
if any, and accrued and unpaid interest shall become immediately due and
payable, notwithstanding anything contained in this Indenture or the Securities
to the contrary. If an Event of Default specified in clauses (7) or (8) of
Section 6.01 occurs, all unpaid principal of, and accrued interest on, the
Securities then outstanding will become due and payable, without any
declaration or other act on the part of the Trustee or any Holder.
The Holders of a majority in principal amount of the then outstanding
Securities, by written notice to the Company, the Subsidiary Guarantors and the
Trustee, may rescind and annul a declaration of acceleration and its
consequences if (i) the Company or any Subsidiary Guarantor has paid or
deposited with such Trustee a sum sufficient to pay (a) all overdue
installments of interest on all the Securities, (b) the principal of, and
premium, if any, on any Securities that has become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates
prescribed therefor in the Securities, (c) to the extent that payment of such
interest is lawful, interest on the defaulted interest at the rate or rates
prescribed therefor in the Securities, and (d) all money paid or advanced by
the Trustee thereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; (ii) all Events of
Default, other than the non-payment of the principal of any Securities that
have
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become due solely by such declaration of acceleration, have been cured or
waived as provided in this Indenture; and (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction. No
such rescission will affect any subsequent Event of Default or impair any right
consequent thereon.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue,
in its own name and as trustee of an express trust, any available remedy by
proceeding at law or in equity to collect the payment of principal or interest
on the Securities or to enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder 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. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 6.07 and 9.02, the Holders of at least a majority in
principal amount of Securities then outstanding by notice to the Trustee may
waive an existing Default or Event of Default and its consequences, except a
Default or Event of Default in payment of principal, premium, if any, or
interest on the Securities, including any optional redemption payments or
Change of Control Offer or Asset Sale Offer payments.
SECTION 6.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities will
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on such Trustee, provided that the Trustee may refuse to follow
any direction that (i) conflicts with law or this Indenture, (ii) is unduly
prejudicial to the rights of other Holders, or (iii) may involve the Trustee in
personal liability.
SECTION 6.06. LIMITATION ON REMEDIES.
Subject to Section 6.07, no Holder of any of the Securities will have
any right to institute any proceeding, judicial or otherwise, or for the
appointment of a receiver or trustee or pursue any remedy under this Indenture,
unless:
(i) such Holder has previously given notice to the Trustee of
a continuing Event of Default,
(ii) the Holders of not less than 25% in principal amount of
the outstanding Securities have made written request to such Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee under this Indenture,
(iii) such Holder or Holders have offered and, if requested,
provided to such Trustee indemnity satisfactory to the Trustee against
the costs, expenses and liabilities to be incurred in compliance with
such request,
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(iv) such Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding, and
(v) no direction inconsistent with such written request has
been given to such Trustee during such 60-day period by the Holders of a
majority in principal amount of the outstanding Securities.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over other Holders.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the Holder of any
Securities will have the right, which is absolute and unconditional, to receive
payment of the principal of, premium, if any, and interest on such Securities
on the stated maturity therefor or redemption or purchase dates thereof and to
institute suit for the enforcement of any such payment, and such right may not
be impaired without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal specified in
Section 6.01(1) or (2) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or any Subsidiary Guarantor for the whole amount of principal of and interest
on the Securities remaining unpaid and such further amounts as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation and expenses of the Trustee, its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
(a) The Trustee may 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 and the Holders allowed in any judicial proceedings relative to the
Company, the Subsidiary Guarantors, their creditors or their property and may
collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article Six, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
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Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders 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 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 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such rights and powers vested in it by this Indenture
and use the same degree of care and skill in such 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:
(1) The Trustee need perform only those duties that are
specifically set forth (or incorporated by reference) in this Indenture
and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine such certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph (c) does not limit the effect of paragraph
(b) of this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 or any other direction permitted
by this Indenture, and the Trustee shall be entitled from time to time
to request such a direction.
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(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(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.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
Subject to Section 7.01:
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney, to the extent reasonably required by such inquiry or
investigation.
(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 certificate or opinion.
(c) The Trustee may act through 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 which it believes to be authorized or within its rights
or powers.
(e) The Trustee may consult with counsel, and the advice or opinion
of counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
(f) For all purposes under this Indenture, the Trustee shall not be
deemed to have notice or knowledge of any Event of Default (other than under
Section 6.01(1) or (2)) unless a Trust Officer knows of such Event of Default
or unless written notice of any Event of Default (other than under
Section 6.01(1) or (2)) is received by the Trustee in accordance with and at
its address specified in Section 11.02 hereof and such notice references the
Securities generally, the Company or this Indenture.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities and may otherwise deal with the Company or its
Subsidiaries or Affiliates 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 SEC for
permission to continue as trustee and receive such permission or resign. Any
Agent may do the same with like rights and duties. Further, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement of the Company in this Indenture or any statement in the
Securities other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default occurs and is continuing and if it is known to the Trustee,
the Trustee shall mail to each Holder pursuant to Section 11.02 a notice of the
Default within 90 days after it occurs. Except in the case of a Default in any
payment on any Security, the Trustee may withhold the notice if and so long as
the board of directors, executive committee or a trust committee of its
directors and/or officers in good faith determines that withholding the notice
is in the interests of Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 1998, and for
so long as Securities remain outstanding, the Trustee shall mail to each Holder
a brief report dated as of such May 15 that complies with TIA Section 313(a),
but only if such report is required in any year under TIA Section 313(a). The
Trustee also shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders shall be
mailed to the Company and filed with the SEC and each stock exchange on which
the Securities are listed in accordance with TIA Section 313(d). The Company
shall notify the Trustee in writing if the Securities become listed on any
national securities exchange or of any delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay the Trustee from time to time reasonable
compensation (including compensation for extraordinary services relating to
default administration) for its services (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust). The Company shall reimburse the Trustee upon request for
all reasonable out-of-pocket expenses, disbursements and advances incurred by
it. Such expenses may include the reasonable compensation and expenses of the
Trustee's agents and counsel.
The Trustee shall not be under any obligation to institute any suit, or
take any remedial action under this Indenture, or to enter any appearance or in
any way defend any suit in which it may be a defendant, or to take any steps in
the execution of the trusts created hereby or thereby or in the enforcement of
any rights and powers under this Indenture, until it shall be indemnified to
its satisfaction against any and all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture, including compensation for services, costs, expenses,
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outlays, counsel fees and other disbursements, and against all liability not
due to its negligence or willful misconduct. The Company shall indemnify the
Trustee against any loss or liability incurred by it in connection with the
acceptance and administration of the trust and its duties hereunder as Trustee,
Registrar and/or Paying Agent, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company of any claim for which the Trustee may seek indemnity; however,
unless the position of the Company is prejudiced by such failure, the failure
of the Trustee to promptly notify the Company shall not limit the Trustee's
right to indemnification. The Company shall defend each such claim and the
Trustee shall cooperate in the defense. The Trustee may retain separate
counsel and the Company shall reimburse the Trustee for the reasonable fees and
expenses of such counsel. The Company need not pay for any settlement made
without its consent.
The Company need not reimburse any expense or indemnify against any loss
or liability incurred by the Trustee through the Trustee's negligence or
willful misconduct.
To satisfy the Company's payment obligations in this Section, the
Trustee shall have a claim prior to that of the Holders of the Securities on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest on particular Securities.
When the Trustee incurs expenses or renders services after the
occurrence of any Event of Default specified in Sections 6.01(7) or (8), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture, as provided by Section 8.05.
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 7.08.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and Company, in writing. The Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) 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;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting as Trustee
hereunder.
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 Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer all property held by it as
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Trustee to the successor Trustee, subject to the claim provided for in Section
7.07, the resignation or removal of the retiring Trustee shall become
effective, the Company shall promptly pay all amounts due and payable to the
retiring Trustee pursuant to Section 7.07, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it prior
to such replacement.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the Securities may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder who has
been a Holder of a Security for at least six months may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. Any successor Trustee shall comply with TIA Section
310(a)(5).
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust assets to, another corporation, the
successor corporation without any further act shall be the successor Trustee;
provided such corporation or association shall be otherwise eligible and
qualified under this Article.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee (together
with its parent bank holding company, if any) shall always have a combined
capital and surplus of at least $200,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall also comply with TIA
Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with 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 EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
(a) This Indenture shall cease to be of further effect (subject to
Section 8.05) when all outstanding Securities theretofore authenticated and
issued hereunder have been delivered (other than any Securities which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.08) to the Trustee for cancellation and the Company
has paid all sums payable hereunder and under the Securities.
(b) In addition to the provisions of Section 8.01(a), at the
Company's option, either (i) the Company and the Subsidiary Guarantors shall be
deemed to have been discharged from their obligations with respect to the
Securities and the provisions of this Indenture (subject to Section 8.05) on
the 91st
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day after the applicable conditions set forth below have been satisfied or
(ii) the Company and the Subsidiary Guarantors shall cease to be under any
obligation to comply with any term, provision or condition set forth in
Sections 4.02, 4.03, 4.07 through 4.19, 5.01(2), 5.01(3), 5.01(4) and the last
paragraph of Section 10.01 with respect to the Securities, and Sections 6.01(3)
(to the extent that such default results from the breach of any of the terms,
provisions or conditions of any of the foregoing Sections referred to in this
clause (ii)), 6.01(4) (to the extent that such default results from the breach
of any of the terms, provisions or conditions of any of the foregoing Sections
referred to in this clause (ii)), 6.01(5) and (with respect to Material
Subsidiaries) 6.01(7) shall cease to be operative, at any time after the
applicable conditions set forth below have been satisfied:
(1) the Company or any Subsidiary Guarantor shall have
deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders (A) money or (B) U.S.
Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
(without any reinvestment of such interest or principal), not later than
one day before the due date of any payment, money or (C) a combination
of (A) and (B), in an amount sufficient, in the opinion (with respect to
(B) and (C)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee at or prior to the time of such deposit, to pay and
discharge each installment of principal of, and premium (if any) and
interest on, the outstanding Securities on the dates such installments
are due;
(2) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur as a result of
such deposit (other than a Default or an Event of Default resulting from
one or more contemporaneous borrowings or issuances, the net proceeds of
which are used, in whole or part, to fund such deposit) and such deposit
will not result in a breach or violation of, or constitute a default
under, any other material instrument (other than this Indenture) to
which the Company or a Subsidiary Guarantor or any Subsidiary is a party
or by which any of them is bound, as evidenced to the Trustee in an
Officers' Certificate delivered to the Trustee concurrently with such
deposit;
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders will not recognize income, gain or
loss for federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.01 and will be subject to
federal income tax on the same amount and in the same manner and at the
same time as would have been the case if such option had not been
exercised, provided that in the case of the Securities being discharged
pursuant to clause (i) of this Section 8.01(b), such opinion shall be
based upon and shall identify a ruling by the Internal Revenue Service
or a change in law to that effect (it being understood that (A) such
Opinion of Counsel shall also state, if applicable, that such ruling or
change in law is consistent with the conclusions reached in such Opinion
of Counsel and (B) the Trustee shall be under no obligation to
investigate the basis of correctness of such ruling);
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Company's exercise of its option under
this Section 8.01 will not result in any of the Company, the Trustee or
the trust created by the Company's deposit of funds hereunder becoming
or being deemed to be an "investment company" under the Investment
Company Act of 1940, as amended;
(5) the Company or any Subsidiary Guarantor shall have paid or
duly provided for payment of all amounts then due to the Trustee
pursuant to Section 7.07; and
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(6) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for in this Indenture relating to the
satisfaction and discharge of this Indenture have been complied with.
(c) The Company or any Subsidiary Guarantor may make an irrevocable
deposit pursuant to this Section 8.01.
SECTION 8.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with the provisions of the Securities and this Indenture to the
payment of principal of and interest on the Securities. Money and securities
so held in trust need not be segregated from other funds except to the extent
required by law.
The term "U.S. Government Obligations" means direct obligations of the
United States for the payment of which the full faith and credit of the United
States is pledged.
SECTION 8.03. REPAYMENT TO COMPANY.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any money or securities held by them at any time in excess of amounts
required to pay principal of or interest on the Securities, which if such
request is made prior to the discharge of this Indenture, shall be money or
securities which in the opinion of a nationally recognized firm of independent
public accountants expressed in a certification thereof to the Trustee are in
excess of amounts required to pay principal of or interest on the Securities.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest that remains
unclaimed for one year; provided, however, that the Trustee or such Paying
Agent before being required to make any such repayment, may at the expense of
the Company cause to be published once in a newspaper of general circulation in
the City of New York or mail to each such Holder notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing any unclaimed balance
of such money then remaining will be paid to the Company. After repayment to
the Company, any Holder entitled to such money shall thereafter, as an
unsecured general creditor, look (unless an applicable law designates another
Person) only to the Company for payment, 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.
SECTION 8.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 8.01 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, the
Company's and the Subsidiary Guarantors' obligations under this Indenture and
the Securities shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01; provided, however, that if the Company or any
Subsidiary Guarantor has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company or such
Subsidiary Guarantor shall be subrogated to the rights of the Holders of such
Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
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SECTION 8.05. SURVIVAL OF CERTAIN OBLIGATIONS.
Notwithstanding the satisfaction and discharge of this Indenture and of
the Securities referred to in Section 8.01(b)(i) and Section 8.01(b)(ii), the
respective obligations of the Company, the Subsidiary Guarantors and the
Trustee under Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 2.12, 4.01
(with respect to Section 8.01(b)(i)), 4.04, 6.07, 7.07, 7.08, 8.02, 8.03, 8.04,
10.03, and 10.04 shall survive until the Securities are no longer outstanding,
and thereafter the obligations of the Company and the Trustee under Sections
7.07, 8.02, 8.03 and 8.04 shall survive. Nothing contained in this Article
Eight shall abrogate any of the obligations or duties of the Trustee under this
Indenture.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Sections 5.01, 10.02 or 10.06;
(3) to provide for uncertificated Securities in addition to,
or in place of, certificated Securities;
(4) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA; or
(5) to make any change that would provide any additional
benefit or rights to the Holders or that does not adversely affect the
rights of any Holder.
Notwithstanding the above, the Trustee and the Company may not make any
change that adversely affects the legal rights of any Holders hereunder.
SECTION 9.02. WITH CONSENT OF HOLDERS.
Subject to Section 6.07, the Company, when authorized by a Board
Resolution, and the Trustee may amend or supplement this Indenture or the
Securities with the written consent of the Subsidiary Guarantors and the
Holders of at least a majority of the principal amount of the Securities then
outstanding, and the Holders of a majority in principal amount of the
Securities, together with the Subsidiary Guarantors, may waive compliance by
the Company or any Subsidiary with any provision of this Indenture or the
Securities. However, without the consent of each Holder affected, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate of interest on the Securities;
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(3) reduce the principal amount of the Securities or extend
the maturity schedule of the Securities or modify the redemption or
repurchase provisions of the Securities;
(4) waive a default in the payment of the principal of,
premium (if any) or interest on the Securities;
(5) make any Security payable in money other than that stated
in the Security;
(6) contractually subordinate the right of payment of the
Securities in a manner that is adverse to the Holders; or
(7) make any change in Section 6.04 or Section 6.07 hereof or
in this sentence of this Section 9.02.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. Any amendment, waiver or consent shall be deemed effective
upon receipt by the Trustee of the necessary consents and shall not require
execution of any supplemental indenture to be effective.
After an amendment, supplement or waiver under this Section 9.02 becomes
effective, the Company shall mail to the Holders of each Security affected
thereby, with a copy to the Trustee, 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 amendment, waiver, consent or supplemental indenture. Except as
otherwise provided in Section 6.04 and this Section 9.02, the Holders of a
majority in aggregate principal amount of the Securities then outstanding may
waive compliance in a particular instance by the Company or the Subsidiary
Guarantors with any provisions of this Indenture or the Securities.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
A consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security.
However, until an amendment, supplement or waiver becomes effective, any such
Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security. For such revocation to be effective, the Trustee must
receive the notice of revocation before the date the amendment, supplement or
waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder unless it makes a change described in any of clauses (1)
through (7) of Section 9.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
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SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company
or the Trustee so determines, the Company in exchange for the Security shall
issue and the Trustee shall authenticate a new Security that reflects the
changed terms.
SECTION 9.06. TRUSTEE PROTECTED.
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 waiver, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Securities, if
required by Section 9.02, the Trustee shall sign any amendment or supplement or
waiver authorized pursuant to this Article if the amendment or supplement or
waiver does not adversely affect the rights, duties, liabilities or immunities
of the Trustee. If it does adversely affect the rights, duties, liabilities or
immunities of the Trustee, the Trustee may but need not sign it. In signing
such amendment or supplement or waiver the Trustee shall be entitled to
receive, and (subject to Article Seven) shall be fully protected in relying
upon, an Opinion of Counsel stating that such amendment or supplement or waiver
is authorized or permitted by and complies with this Indenture, is the legal,
valid and binding obligation of the Company or the applicable Subsidiary, or
any combination of the foregoing Persons as applicable, enforceable against it
or them, as applicable, in accordance with its terms (subject to customary
qualifications and exceptions), and that all necessary governmental consents
have been obtained. The Company may not sign an amendment or supplement until
the Board of Directors of the Company approves it.
ARTICLE TEN
SUBSIDIARY GUARANTEES
SECTION 10.01. UNCONDITIONAL GUARANTEE.
Each Subsidiary Guarantor hereby unconditionally, jointly and severally,
guarantees (such guarantee to be referred to herein as the "Subsidiary
Guarantee") to each Holder of Securities authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, that:
(1) the principal of, premium, if any, and interest on the
Securities will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue
principal of and interest on the Securities, if any, to the extent
lawful, and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and
(2) in case of any extension of time of payment or renewal of
any Securities or of any 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,
subject, however, in the case of clauses (1) and (2) above, to the limitations
set forth in Section 10.04.
Failing payment when due of any amount so guaranteed or any performance
so guaranteed for whatever reason, the Subsidiary Guarantors will be jointly
and severally obligated to pay the same
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immediately. Each Subsidiary Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Subsidiary Guarantor hereby, to the extent permitted by law,
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice, notice of intent to
accelerate, notice of acceleration, and all other notices and all demands
whatsoever and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in the Securities,
this Indenture and in this Subsidiary Guarantee. If any Holder or the Trustee
is required by any court or otherwise to return to the Company, any Subsidiary
Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Company or any Subsidiary Guarantor, any amount paid
by the Company or any Subsidiary Guarantor 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 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
each Subsidiary Guarantor, 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 Six 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 acceleration of such obligations as provided in Article Six,
such obligations (whether or not due and payable) shall forthwith become due
and payable by each Subsidiary Guarantor for the purpose of this Subsidiary
Guarantee.
The Company agrees to cause (a) each Person (other than an Unrestricted
Subsidiary and any Exempt Foreign Subsidiary) that shall become a Material
Subsidiary after the date of the Issue Date, and (b) each Subsidiary that is
not a Subsidiary Guarantor on the Issue Date that after the Issue Date incurs
any Indebtedness with respect to any Indebtedness of the Company or any other
Subsidiary, to execute and deliver a supplement to this Indenture agreeing to
be bound by its terms applicable to a Subsidiary Guarantor and pursuant to
which such Person will guarantee the payment of the Securities on the same
terms and conditions as the Subsidiary Guarantees by the Subsidiary Guarantors.
SECTION 10.02. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
(a) Except as set forth in Article Five, nothing contained in this
Indenture or in any of the Securities 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.
(b) Except as set forth in Article Five hereof, nothing contained in
this Indenture or in any of the Securities shall prevent any consolidation or
merger of a Subsidiary Guarantor with or into a Person other than the Company
or a Subsidiary Guarantor that is a Wholly Owned Subsidiary (whether or not
affiliated with the Subsidiary Guarantor that is a Wholly Owned Subsidiary), or
successive consolidations or mergers in which a Subsidiary Guarantor or its
successor or successors shall be a party or parties, or shall prevent any sale
or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to a Person other than the Company or another
Subsidiary Guarantor that is a Wholly Owned Subsidiary (whether or not
affiliated with the Subsidiary Guarantor that is a Wholly Owned Subsidiary)
authorized to acquire and operate the same; provided, however, that,
(i) immediately after such transaction, and giving effect thereto, no Default
or Event of Default shall have
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occurred as a result of such transaction and be continuing, (ii) such
transaction shall not violate any of the covenants in Sections 4.02, 4.09
through 4.16, 4.18 and 4.19, and (iii) except to the extent that Section 10.03
would result in the release of such Subsidiary Guarantor, each Subsidiary
Guarantor hereby covenants and agrees that, upon any such consolidation,
merger, sale or conveyance, such Subsidiary Guarantor's Subsidiary Guarantee
set forth in this Article Ten, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by such Subsidiary Guarantor, shall be expressly assumed (in the
event that the Subsidiary Guarantor is not the surviving Person in the merger),
by supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person formed by such consolidation, or into
which the Subsidiary Guarantor shall have merged, or by the Person that shall
have acquired such property. In the case of any such consolidation, merger,
sale or conveyance 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 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.
SECTION 10.03. RELEASE OF A SUBSIDIARY GUARANTOR.
Upon the sale or other disposition of a Subsidiary Guarantor (or all or
substantially all of its properties and assets), which is otherwise in
compliance with the terms of this Indenture, including but not limited to the
provisions of Section 10.02, such Subsidiary Guarantor shall be deemed released
from all of the Subsidiary Guarantee and related obligations in this Indenture;
provided, however, that any such termination shall occur only to the extent
that all obligations of such Subsidiary Guarantor under all of its guarantees
of, and under all of its pledges of assets or other security interests which
secure, other Indebtedness of the Company or any Subsidiary shall also
terminate or be released upon such sale or transfer. Each Subsidiary Guarantor
that is designated as an Unrestricted Subsidiary in accordance with this
Indenture shall be released from all of its Subsidiary Guarantee and related
obligations set forth in this Indenture for so long as it remains an
Unrestricted Subsidiary. The Trustee shall deliver an appropriate instrument
evidencing such release upon receipt of a request by the Company accompanied by
an Officers' Certificate and an Opinion of Counsel certifying that such sale or
other disposition was made by the Company in accordance with the provisions of
this Indenture. Any Subsidiary Guarantor not so released remains liable for
the full amount of principal of and interest on the Securities as provided in
this Article Ten.
SECTION 10.04. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY.
Each Subsidiary Guarantor and by its acceptance hereof each beneficiary
hereof, hereby confirms that it is the intention of all such parties that
Subsidiary Guarantee by such Subsidiary Guarantor not constitute a fraudulent
transfer or conveyance for purposes of any federal or state law. To effectuate
the foregoing intention, each such beneficiary and each Subsidiary Guarantor
hereby irrevocably agree that the obligations of each Subsidiary Guarantor
under its Subsidiary Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities (including,
but not limited to, Guarantor Senior Indebtedness of each Subsidiary Guarantor)
of such Subsidiary Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Subsidiary Guarantor in respect of
the obligations of such other Subsidiary Guarantor under its Subsidiary
Guarantee or pursuant to Section 10.05, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent conveyance or fraudulent transfer under federal or state law. This
Section 10.04 is for the benefit of the creditors of each Subsidiary Guarantor,
and, for purposes of applicable fraudulent transfer and fraudulent conveyance
law, any Indebtedness of a Subsidiary Guarantor pursuant to the Credit Facility
shall be deemed to have been incurred prior to the incurrence by such
Subsidiary Guarantor of its liability under the Subsidiary Guarantee.
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SECTION 10.05. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors agree, inter se, that in the
event any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under the Subsidiary Guarantee, such Funding Guarantor
shall be entitled to a contribution from each other Subsidiary Guarantor in a
pro rata amount based on the Adjusted Net Assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by that Funding Guarantor in discharging the Company's obligations
with respect to the Securities or any other Subsidiary Guarantor's obligations
with respect to the Subsidiary Guarantee.
SECTION 10.06. EXECUTION AND DELIVERY OF SUBSIDIARY GUARANTEE.
To evidence its guarantee set forth in Section 10.01, each Subsidiary
Guarantor hereby agrees to execute its Subsidiary Guarantee in substantially
the form of Exhibit A-1 to be endorsed on each Security ordered to be
authenticated and delivered by the Trustee and each Subsidiary Guarantor agrees
that this Indenture shall be executed on behalf of each Subsidiary Guarantor by
its President or one of its Vice Presidents and attested to by an Officer or a
Secretary or Assistant Secretary. Each Subsidiary Guarantor hereby agrees that
its Subsidiary Guarantee set forth in Section 10.01 shall remain in full force
and effect notwithstanding any failure to endorse on each Security a notation
of such Subsidiary Guarantee. Each such Subsidiary Guarantee shall be signed
on behalf of each Subsidiary Guarantor by one Officer, (who shall have been
duly authorized by all requisite corporate actions) prior to the authentication
of the Security on which it is endorsed, and the delivery of such Security 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. Such signatures upon the Subsidiary Guarantee may
be by manual or facsimile signature of such officers and may be imprinted or
otherwise reproduced on the Subsidiary Guarantee, and in case any such officer
who shall have signed the Subsidiary Guarantee shall cease to be such officer
before the Security on which such Subsidiary Guarantee is endorsed shall have
been authenticated and delivered by the Trustee or disposed of by the Company,
such Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed the Subsidiary Guarantee had not ceased to be such
officer of the Subsidiary Guarantor.
SECTION 10.07. SEVERABILITY.
In case any provision of any Subsidiary Guarantee shall be invalid,
illegal or unenforceable, that portion of such provision that is not invalid,
illegal or unenforceable shall remain in effect, and the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties
shall control.
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SECTION 11.02. NOTICES.
Any notice or communication shall be sufficiently given if in writing
and delivered in person or mailed by certified or registered mail (return
receipt requested) or sent by overnight air courier guaranteeing next-day
delivery, addressed as follows or by facsimile transmission:
If to the Company or any Subsidiary Guarantor:
Xxxxxx International Inc.
One Xxxxxxxx Center
0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Chief Financial Officer
Until written notice is given to the Trustee to the contrary, the
office or agency maintained in the City of New York by the
Company where Securities may be surrendered for registration of
transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served, shall be the offices
of the Trustee located in the City of New York which are so
designated immediately hereinafter.
If to the Trustee:
For registration, transfer, exchange, payment and notices
and demands to or upon Company in respect of the
Securities (with copy of each such notice or demand sent
to Trustee's office in Dallas, Texas as set forth below):
By hand:
U.S. Trust Company of Texas, N.A.
000 Xxxxxxxx, X.X.
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Attention: Corporate Trust
By mail:
U.S. Trust Company of Texas, N.A.
P. X. Xxx 000
Xxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
For all other communications relating to the Securities:
U.S. Trust Company of Texas, N.A.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust
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The Company or any Subsidiary Guarantor or the Trustee, by notice to the
other, 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; 5 Business Days after being deposited in the United States mail,
postage prepaid, if mailed; when receipt acknowledged, if sent by facsimile;
the next Business Day after timely delivery to the courier, if sent for
overnight delivery by a courier guaranteeing next-day delivery; and the second
Business Day after timely delivery to the courier, if sent for second-day
delivery by a courier guaranteeing second-day delivery.
Any notice or communication mailed to a Holder shall be mailed to him by
first-class mail at his address as it appears on the registration books of the
Registrar and shall be sufficiently given to him if so mailed within the time
prescribed.
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, it is duly given,
whether or not the addressee receives it. If the Company mails notice or
communications to Holders it shall mail a copy to the Trustee and each Agent at
the same time. All notices or communications shall be in writing.
SECTION 11.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Subsidiary Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company and/or any Subsidiary
Guarantor to the Trustee to take any action under this Indenture, the Company
and/or such Subsidiary Guarantor, as the case may be, shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, the conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of each such person, he
or she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such person, such covenant or condition has been complied with.
SECTION 11.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules for its
functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday, or a day on which banks and
trust companies in The City of New York are not required by law or executive
order to be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is not a Legal
Holiday, without additional interest.
SECTION 11.08. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
SECTION 11.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
ALL LIABILITY DESCRIBED IN PARAGRAPH 18 OF THE SECURITIES OF ANY
DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY, THE
SUBSIDIARY GUARANTORS OR THE TRUSTEE IS WAIVED AND RELEASED.
SECTION 11.11. SUCCESSORS.
All agreements of the Company and Subsidiaries in this Indenture and the
Securities shall bind their successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.12. DUPLICATE 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
instrument.
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SECTION 11.13. SEVERABILITY.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party hereto.
SECTION 11.14. COUNTERPARTS.
This Indenture may be executed in one or more counterparts, and by each
of the parties hereto on separate counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first written above.
Dated: February 13, 1998
XXXXXX INTERNATIONAL INC.
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President and Chief Executive
Officer
U.S. TRUST COMPANY OF TEXAS, N.A.,
Trustee
By /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
SUBSIDIARY GUARANTORS:
XXXXXX ENERGY SERVICES, INC., a
Delaware corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
XXXXXX INTERNATIONAL SALES
CORPORATION, a Delaware corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
COLUMBIA PETROLEUM SERVICES CORP.,
a Delaware corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
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INTERNATIONAL PETROLEUM SERVICES,
INC., a Delaware corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
XXXXXX ENVIRONMENTAL REMEDIATION
TECHNOLOGIES, INC., a Texas
corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
XXXXXX WORLDWIDE SERVICES, CORP., a
Texas corporation
By /s/ Xxxxx X. Xxxx
--------------------------------
XXXXX X. XXXX
President
AIR DRILLING INTERNATIONAL, INC., a
Delaware corporation
By /s/ Xxxxx X. Xxxxx
--------------------------------
XXXXX X. XXXXX
Vice President
AIR DRILLING SERVICES, INC., a
Wyoming corporation
By /s/ Xxxxx X. Xxxxx
--------------------------------
XXXXX X. XXXXX
Vice President
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EXHIBIT A
[Form of Security]
[If a Series A Security or a Series B Security constituting a Transfer
Restricted Security --
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS,
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR
FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL
ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS ACQUIRING THE NOTES
EVIDENCED HEREBY IN AN OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT WITHIN
TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THE NOTES EVIDENCED HEREBY RESELL OR
OTHERWISE TRANSFER THE NOTES EVIDENCED HEREBY, EXCEPT (A) TO XXXXXX
INTERNATIONAL INC. (THE "COMPANY"), (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C)
INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO U.S. TRUST COMPANY OF TEXAS, N.A., AS TRUSTEE, A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE UNITED STATES TO
FOREIGN PURCHASERS IN OFFSHORE TRANSACTIONS MEETING THE REQUIREMENTS OF RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE),
OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTES EVIDENCED
HEREBY ARE TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTES EVIDENCED HEREBY WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF SUCH NOTES, THE HOLDER MUST PRIOR TO SUCH
TRANSFER, FURNISH TO U.S. TRUST COMPANY OF TEXAS, N.A., AS TRUSTEE, A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTES EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM SUCH TRUSTEE). IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY AND U.S. TRUST COMPANY OF TEXAS, N.A., AS TRANSFER
AGENT, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED AFTER THE
EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE NOTES EVIDENCED
HEREBY IF THE PROVISIONS OF SECTION 2.14(a)(i) OF THE INDENTURE ARE SATISFIED.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S.
PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
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REGISTERED
9 1/2% SENIOR NOTE DUE 2008
CUSIP:__________________
No. R-_________________ $______________
XXXXXX INTERNATIONAL INC.
(a Delaware corporation)
promises to pay to __________________________
or registered assigns
the principal sum of ____________________ Dollars on February 15, 2008
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
Dated: XXXXXX INTERNATIONAL INC.
Attest: By:
-------------------------- ----------------------------------
Secretary President
[Seal]
Authenticated:
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By
-----------------------------------
Authorized Signatory
OR
as Authenticating Agent
By
-----------------------------------
Authorized Signatory
[Seal]
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[Reverse Side of Security]
XXXXXX INTERNATIONAL INC.
9 1/2% Senior Note Due 2008
1. Interest.
Xxxxxx International Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at 9 1/2% per
annum from ___________ ____, ______ until maturity. The Company will pay
interest semiannually on February 15 and August 15 of each year, commencing
___________ ______, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the
Securities will accrue from the most recent date to which interest has been
paid or duly provided for or, if no interest has been paid, from the date of
original issuance; provided that if there is no existing Default or Event of
Default in the payment of interest, and if this Security 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, except in the case of the original issuance of Securities, in
which case interest shall accrue from the date of authentication. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
Accrued but unpaid interest on any Series A Security that is exchanged for a
Series B Security pursuant to the Registration Rights Agreement shall be paid
on or before the first interest payment date on the Series B Securities.
The interest rate on the Securities is subject to increase under certain
circumstances described in Section 4 of the Registration Rights Agreement.
The Company shall pay interest on overdue principal of and interest on
overdue installments of interest, to the extent lawful, at a rate equal to the
rate of interest otherwise payable on the Securities.
2. Method of Payment.
The Company will pay interest on the Securities to the persons who are
registered holders of Securities at the close of business on the February 1 or
August 1 immediately preceding the interest payment date even though Securities
are cancelled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal of and interest on the Securities in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. The Company may pay principal or interest
by check payable in such money or by wire transfer of immediately available
funds. If paying by check, the Company may mail such check to a Holder's
registered address.
3. Paying Agent and Registrar.
Initially, the Trustee will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-registrar without notice.
The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
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4. Indenture and Subsidiary Guarantees.
The Company issued the Securities under an Indenture dated as of
February 13, 1998 (the "Indenture") among the Company, the Subsidiary
Guarantors, and the Trustee. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of the Indenture or on the date
of any amendment thereto, to the extent required by Section 9.03 of the
Indenture. Notwithstanding anything to the contrary herein, the Securities are
subject to all such terms, and Holders are referred to the Indenture and such
Act for a statement of such terms. The Securities are general unsecured
obligations of the Company limited to $275,000,000 aggregate principal amount
in the case of Securities issued on the Issue Date. Payment on each Security
is guaranteed on a senior unsecured basis, jointly and severally, by the
Subsidiary Guarantors pursuant to Article Ten of the Indenture.
5. Optional Redemption.
At any time or in part from time to time on and after February 15, 2003,
the Company may, at its option, redeem all or any portion of the Securities at
the redemption prices (expressed as percentages of the principal amount of the
Securities) set forth below, plus, in each case, accrued interest thereon to
the applicable redemption date, if redeemed during the 12-month period
beginning on February 15 of the years indicated below:
Year Percentage
2003 . . . . . . . . . . . 104.750%
2004 . . . . . . . . . . . 103.167%
2005 . . . . . . . . . . . 101.583%
2006 and thereafter . . . . 100.000%
In addition, at any time or from time to time on or before February 15,
2001, up to 35% of the aggregate principal amount of the Securities originally
issued may be redeemed, at the option of the Company, upon not less than 30 or
more than 60 days' notice, from the Net Proceeds of one or more Public Equity
Offerings, at a price equal to 109.50% of the principal amount thereof,
together with accrued and unpaid interest, if any, to the date of redemption,
provided that (i) at least 65% of the aggregate principal amount of the
Securities originally issued remains outstanding immediately after each such
redemption, and (ii) each such redemption occurs within 60 days following the
closing of each such Public Equity Offering.
In the case of any redemption of Securities, interest installments due
and payable on or prior to the date of redemption will be payable to Holders of
such Securities of record at the close of business on the relevant Record Date
referred to on the face hereof. Securities (or portions thereof) for whose
redemption and payment provision is made in accordance with the Indenture shall
cease to bear interest from and after the date of redemption. In the event of
redemption or purchase of this Series __ Security in part only, a new Series __
Security or Securities for the unredeemed or unpurchased portion hereof shall
be issued in the name of the Holder hereof upon the cancellation hereof.
The Securities do not have the benefit of any sinking fund obligations.
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6. Notice of Redemption.
Notice of redemption will be mailed to the registered address of each
Holder of Securities to be redeemed at least 30 days but not more than 60 days
before the redemption date. If less than all Securities are to be redeemed,
the Trustee shall select pro rata, by lot or by any other method considered
fair and appropriate by the Trustee and, if the Securities are listed on any
securities exchange, by a method that complies with the requirements of such
exchange, the Securities to be redeemed in multiples of $1,000. Securities in
denominations larger than $1,000 may be redeemed in part.
7. Change of Control.
Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase all of the then outstanding Securities
(a "Change of Control Offer"), and shall purchase, on a Business Day (the
"Change of Control Purchase Date") not more than 60 nor less than 30 days
following the occurrence of a Change of Control, all of the then outstanding
Securities validly tendered pursuant to such Change of Control Offer, at a
purchase price (the "Change of Control Purchase Price") equal to 101% of the
principal amount thereof, plus accrued and unpaid interest, if any, to the
Change of Control Purchase Date. The Change of Control Offer is required to
remain open for at least 20 Business Days and until the close of business on
the fifth Business Day prior to the Change of Control Purchase Date.
In order to effect such Change of Control Offer, the Company shall, not
later than the 30th day after the occurrence of such Change of Control, mail to
the Trustee and to each Holder of the Securities notice of the Change of
Control Offer, which notice shall govern the terms of the Change of Control
Offer and shall state, among other things, the procedures that Holders of the
Securities must follow to accept the Change of Control Offer.
8. Asset Sale Offer.
In the event of certain Asset Sales, the Company may be required to make
an Asset Sale Offer to purchase all or any portion of each Holder's Securities,
at 100% of the principal amount thereof plus accrued and unpaid interest, if
any, to the Asset Sale Offer Purchase Date.
9. Restrictive Covenants.
The Indenture imposes certain limitations on, among other things, the
ability of the Company or Subsidiaries to merge or consolidate with any other
Person or sell, lease or otherwise transfer all or substantially all of its
properties or assets, the ability of the Company or the Subsidiaries to dispose
of certain assets, to pay dividends and make certain other distributions and
payments, to make certain investments or redeem, retire, repurchase or acquire
for value shares of capital stock, to incur additional Indebtedness or incur
encumbrances against certain property, to engage in other business activities,
and to enter into certain transactions with Related Persons, all subject to
certain limitations described in the Indenture.
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar
Xxxxxx International Inc.: Indenture
A-5 Execution Copy
77
need not transfer or exchange any Securities selected for redemption. Also, it
need not transfer or exchange any Securities for a period of 30 days before a
selection of Securities to be redeemed.
11. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes and neither the Company, the Trustee nor any Agent shall be
affected by notice to the contrary.
12. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for
one year, the Trustee or Paying Agent will pay the money back to the Company at
its request. After that, all liability of the Trustee and such Paying Agents
with respect to such money shall cease.
13. Discharge and Defeasance.
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Securities to redemption or maturity,
as the case may be.
14. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities, and any past default or noncompliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities. Without the consent of any Holder, the
Company may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency or to provide for
uncertificated Securities in addition to, or in place of, certificated
Securities or to make any change that does not adversely affect the rights of
any Holder.
15. Successor Corporation.
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor corporation
will be released from those obligations.
16. Defaults and Remedies.
An event of default generally is: default in payment of principal on
the Securities; default for 30 days in payment of interest on the Securities;
failure by the Company or any Subsidiary Guarantor for 45 days after notice to
comply with any of its other agreements in the Indenture; certain defaults
under or acceleration prior to maturity of other indebtedness; certain final
judgments against the Company or Subsidiaries; a failure of any Subsidiary
Guarantee of a Material Subsidiary to be in full force and effect or denial by
any Subsidiary Guarantor of its obligations with respect thereto; and certain
events of bankruptcy or insolvency. Subject to certain limitations in the
Indenture, if an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Securities
may declare all the Securities to be due and payable immediately, except that
in the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization relating to the Company or any Material
Subsidiary, all outstanding Securities shall become due and payable immediately
without further action or notice. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it
Xxxxxx International Inc.: Indenture
A-6 Execution Copy
78
enforces the Indenture or the Securities. Subject to certain limitations,
Holders of a majority in principal amount of the Securities may direct the
Trustee in its exercise of any trust or power. The Company must furnish an
annual compliance certificate to the Trustee.
17. Trustee Dealings with Company.
U.S. Trust Company of Texas, N.A., the Trustee under the Indenture, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Subsidiaries or
Affiliates with the same rights it would have if it were not Trustee, subject,
however, to required actions on the part of the Trustee in the event it
acquires any conflicting interest.
18. No Recourse Against Others.
A DIRECTOR, OFFICER, EMPLOYEE OR STOCKHOLDER, AS SUCH, OF THE COMPANY,
ANY SUBSIDIARY GUARANTOR OR THE TRUSTEE, SHALL NOT HAVE ANY LIABILITY FOR ANY
OBLIGATIONS OF THE COMPANY, ANY SUBSIDIARY GUARANTOR OR THE TRUSTEE, UNDER THE
SECURITIES 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
SECURITY WAIVES AND RELEASES ALL SUCH LIABILITY. THE WAIVER AND RELEASE ARE
PART OF THE CONSIDERATION FOR THE ISSUE OF THE SECURITIES AND THE SUBSIDIARY
GUARANTEES.
19. Authentication.
This Security shall not be valid until the Trustee or an authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. 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).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to Holders. No representation is
made as to the accuracy of such numbers as printed on the Securities and
reliance may be placed only on the other identification numbers printed hereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to: Secretary, Xxxxxx
International Inc., One Xxxxxxxx Center, 0000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxx
00000.
22. Governing Law.
THIS INDENTURE AND THE SECURITIES AND THE SUBSIDIARY GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
Xxxxxx International Inc.: Indenture
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79
[If a Series A Security, the following:
23. Exchange Option.
At the option of the Holders hereof, the Series A Securities may be
exchanged, pursuant to the Registration Rights Agreement, for a like aggregate
principal amount of Series B Securities.]
Xxxxxx International Inc.: Indenture
A-8 Execution Copy
80
[Form of Assignment]
To assign this Security, fill in the form below:
I or we assign and transfer this Security to:
-------------------------------------------------------
-------------------------------------------------------
(Insert assignee's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Your Signature:
-----------------------------------------------------------------
(Sign exactly as your name appears on the other side of this
Security)
Date:
--------------------------
Signature Guarantee:
--------------------
Xxxxxx International Inc.: Indenture
A-9 Execution Copy
81
[Form of Option of Holder to Elect Purchase]
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.17 of the Indenture, check the
appropriate box:
Section 4.12 [ ]
Section 4.17 [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 4.12 or 4.17 of the Indenture, state the amount (in
integral multiples of $1,000):
$
-----------------------------
Date: Signature:
------------------------- --------------------------
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:
------------------------------
Xxxxxx International Inc.: Indenture
A-10 Execution Copy
82
EXHIBIT A-1
[Form of Notation on Security
Relating to Subsidiary Guarantee]
SUBSIDIARY GUARANTEE
Subject to the limitations set forth in the Indenture, the Subsidiary
Guarantors (as defined in the Indenture referred to in the Security upon which
this notation is endorsed, and each hereinafter referred to as a "Subsidiary
Guarantor," which term includes any successor or additional Subsidiary
Guarantor under the Indenture) have unconditionally guaranteed (a) the due and
punctual payment of the principal of, premium (if any), and interest on the
Securities, whether at maturity, acceleration, redemption or otherwise, (b) the
due and punctual payment of interest on the overdue principal of and interest
on the Securities, if any, to the extent lawful, (c) the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms set forth in the Indenture, and
(d) in case of any extension of time of payment or renewal of any Securities or
any of such other obligations, 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. Capitalized terms used
herein have the meanings assigned to them in the Indenture unless otherwise
indicated.
No stockholder, officer, director or incorporator, as such, past,
present or future, of the Subsidiary Guarantors shall have any personal
liability under this Subsidiary Guarantee by reason of his or its status as
such stockholder, officer, director or incorporator.
This Subsidiary Guarantee shall be binding upon each Subsidiary
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and
be vested in such transferee or assignee, all subject to the terms and
conditions hereof and in the Indenture.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
Subsidiary Guarantors:
XXXXXX ENERGY SERVICES, INC., a
Delaware corporation
By
---------------------------------
Name:
Title:
Xxxxxx International Inc.: Indenture
A-1 - 1 Execution Copy
83
XXXXXX INTERNATIONAL SALES
CORPORATION,
a Delaware corporation
By
---------------------------------
Name:
Title:
COLUMBIA PETROLEUM SERVICES CORP.,
a Delaware corporation
By
---------------------------------
Name:
Title:
INTERNATIONAL PETROLEUM SERVICES,
INC., a Delaware corporation
By
---------------------------------
Name:
Title:
XXXXXX ENVIRONMENTAL REMEDIATION
TECHNOLOGIES, INC., a Texas
corporation
By
---------------------------------
Name:
Title:
XXXXXX WORLDWIDE SERVICES, CORP., a
Texas corporation
By
---------------------------------
Name:
Title:
Xxxxxx International Inc.: Indenture
A-1 - 2 Execution Copy
84
AIR DRILLING INTERNATIONAL, INC., a
Delaware corporation
By
---------------------------------
Name:
Title:
AIR DRILLING SERVICES, INC., a
Wyoming corporation
By
---------------------------------
Name:
Title:
Xxxxxx International Inc.: Indenture
A-1 - 3 Execution Copy
85
EXHIBIT A-2
[Form of Legend For Global Securities]
Any Global Security authenticated and delivered hereunder shall bear a
legend in addition to the Private Placement Legend, if required pursuant to
Section 2.14, in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
Xxxxxx International Inc.: Indenture
A-2 - 1 Execution Copy
86
EXHIBIT B-1
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 9 1/2% Senior Notes due 2008, Series A, and
9 1/2% Senior Notes due 2008, Series B
(the "Securities"), of Xxxxxx International Inc.
This Certificate relates to $_______ principal amount of Securities held
in the form of *[ ] a beneficial interest in a Global Security or *[ ] Physical
Securities by _______________ (the "Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by DTC a
Physical Security or Physical Securities in definitive, registered form of
authorized denominations and in an aggregate principal amount equal to its
beneficial interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested that the Registrar by written order exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with the
Indenture relating to the above captioned Securities and the restrictions on
transfers thereof as provided in Section 2.06 of such Indenture, and that the
transfer of these Securities does not require registration under the Securities
Act of 1933, as amended (the "Act") because *:
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of subparagraph (a)(1) or (c)(1) of Section
2.06 of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act).
[ ] Such Security is being transferred in reliance on Regulation S under
the Act.
[ ] Such Security is being transferred in reliance on Rule 144 under the
Act.
Xxxxxx International Inc.: Indenture
B-1 - 1 Execution Copy
87
[ ] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
[INSERT NAME OF TRANSFEROR]
By:
-------------------------------
[Authorized Signatory]
Date:
-------------------------------
----------
* Check applicable box.
Xxxxxx International Inc.: Indenture
X-0 - 0 Xxxxxxxxx Xxxx
00
XXXXXXX X-0
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS TO
INSTITUTIONAL ACCREDITED INVESTORS
__________________ , ____
U.S. Trust Company of Texas, N.A.
---------------------------------
---------------------------------
Re: Xxxxxx International Inc. Indenture (the "Indenture")
relating to 9 1/2% Senior Notes due 2008, Series A,
or 9 1/2% Senior Notes due 2008, Series B
Ladies and Gentlemen:
In connection with our proposed purchase of 9 1/2% Senior Notes due
2008, Series A, or 9 1/2% Series Notes due 2008, Series B (the "Securities"),
of Xxxxxx International Inc. (the "Company"), we confirm that:
1. We have received such information as we deem necessary in order
to make our investment decision.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture and
the undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with, such restrictions and
conditions and the Securities Act of 1933, as amended (the "Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except as permitted in the following sentence. We agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, that if we should sell any Securities, we will do so only
(A) to the Company or any subsidiary thereof, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified
institutional buyer" (as defined therein), (C) inside the United States to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee a signed letter substantially in the form hereof, (D) outside the
United States in accordance with Regulation S under the Securities Act, (E)
pursuant to the exemption from registration provided by Rule 144 under the
Securities Act (if available), or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing Securities from us a notice advising such purchaser that
resales of the Securities are restricted as stated herein.
4. We understand that, on any proposed resale of Securities, we will
be required to furnish to you and the Company, such certification, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Securities purchased by us will bear a legend to
the foregoing effect.
Xxxxxx International Inc.: Indenture
B-2 - 1 Execution Copy
89
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of our investment in the Securities,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or their investment, as the case may be, for an indefinite
period.
6. We are acquiring the Securities purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion, for
investment purposes and not with a view to, or for offer or sale in connection
with, any distribution in violation of the Securities Act.
You and the Company and your and their respective counsel are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------------
[Authorized Signatory]
Xxxxxx International Inc.: Indenture
X-0 - 0 Xxxxxxxxx Xxxx
00
XXXXXXX X-0
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION
WITH REGULATION S TRANSFERS
__________________ , ____
U.S. Trust Company of Texas, N.A.
---------------------------------
---------------------------------
Re: Xxxxxx International Inc. ("the Company")
9 1/2% Senior Notes due 2008, Series A, and
9 1/2% Senior Notes due 2008, Series B (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S (as amended, "Regulation S") under the
Securities Act of 1933, as amended (the "Securities Act"), and, accordingly, we
represent that:
(1) the offer of the Securities was not made to a person in
the United States or targeted at any identifiable group of U.S. citizen
abroad;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we
nor any person acting on our behalf knows that the transaction has been
pre-arranged with a buyer in the United States;
(3) no directed selling efforts (as defined in Rule 902(b) of
Regulation S) have been made in the United States in contravention of
the requirements of Rule 904(b) of Regulation S;
(4) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer
restrictions applicable to the Securities.
Xxxxxx International Inc.: Indenture
B-3 - 1 Execution Copy
91
You and the Company and your and their respective counsel are entitled
to rely upon this letter and are irrevocably authorized to produce this letter
or a copy thereof to any interested party in any administrative or legal
proceeding or official inquiry with respect to the matters covered hereby.
Defined terms used herein without definition have the respective meanings
provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
----------------------------
[Authorized Signature]
Xxxxxx International Inc.: Indenture
B-3 - 2 Execution Copy
92
ANNEX A
================================================================================
XXXXXX INTERNATIONAL INC.
and the
SUBSIDIARY GUARANTORS
identified herein
$275,000,000
9 1/2% Senior Notes due 2008
REGISTRATION RIGHTS AGREEMENT
February 13, 1998
Xxxxxxxxx & Company, Inc.
================================================================================
93
TABLE OF CONTENTS
PAGE NO.
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Exchange Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. Shelf Registration . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. Additional Interest . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . 8
6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . 13
7. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
8. Rules 144 and 144A . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Underwritten Registrations . . . . . . . . . . . . . . . . . . . . . 16
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
a. Remedies . . . . . . . . . . . . . . . . . . . . . . . 16
b. No Inconsistent Agreements . . . . . . . . . . . . . . 16
c. No Piggyback on Registrations . . . . . . . . . . . . . 16
d. Amendments and Waivers . . . . . . . . . . . . . . . . 16
e. Notices . . . . . . . . . . . . . . . . . . . . . . . . 17
f. Successors and Assigns . . . . . . . . . . . . . . . . 17
g. Counterparts . . . . . . . . . . . . . . . . . . . . . 17
h. Governing Law; Submission to Jurisdiction . . . . . . . 17
i. Severability . . . . . . . . . . . . . . . . . . . . . 18
j. Headings . . . . . . . . . . . . . . . . . . . . . . . 00
-x-
00
XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of February 13, 1998 by and among Xxxxxx International, Inc., a
Delaware corporation (the "Company"), Xxxxxx Energy Services, Inc., Xxxxxx
International Sales Corporation, Columbia Petroleum Services Corp.,
International Petroleum Services, Inc., Xxxxxx Environmental Remediation
Technologies, Inc., Xxxxxx Worldwide Services, Corp., Air Drilling
International, Inc. and Air Drilling Services, Inc. (the "Subsidiary
Guarantors" and, together with the Company, the "Issuers") and Xxxxxxxxx &
Company, Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
February 6, 1998, among the Company, the Subsidiary Guarantors and the Initial
Purchaser (the "Purchase Agreement"). In order to induce the Initial Purchaser
to enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights provided for in this Agreement to the Initial Purchaser and
its direct and indirect transferees. The execution and delivery of this
Agreement is a condition to the closing of the transactions contemplated by the
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Advice: As defined in the last paragraph of Section 5 hereof.
Affiliate: With respect to any specified person, "Affiliate"
shall mean 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 "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
Business Day: Any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term
"Exchange Offer" shall mean validly and lawfully to issue and deliver the
Exchange Notes pursuant to the Exchange Offer for all Notes validly tendered
and not validly withdrawn pursuant thereto in accordance with the terms of this
Agreement.
Consummation Date: The date that is 30 Business Days immediately
following the date that the Exchange Offer Registration Statement shall have
been declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
95
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 9 1/2% Senior Notes due 2008, Series B, of
the Company, unconditionally guaranteed on a joint and severed basis by each of
the Subsidiary Guarantors, issued pursuant to the Indenture, and that are
identical to the Notes in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as appropriate, and the
issuance thereof pursuant to the Exchange Offer shall have been registered
pursuant to an effective Registration Statement in compliance with the
Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all
of the Notes, a like aggregate principal amount of Exchange Notes, which offer
shall be made by the Company pursuant to Section 2 hereof.
Exchange Offer Registration Statement: As defined in Section
2(a) hereof.
Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of February __, 1998, among
the Issuers and U.S. Trust Company of Texas, N.A., as trustee thereunder,
pursuant to which the Notes are issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Issue Date: As defined in Section 2(a).
Issuers: As defined in the preamble hereof.
Notes: The 9 1/2% Senior Notes due 2008, Series A, of the
Company, unconditionally guaranteed on a joint and several basis by each of the
Subsidiary Guarantors and, issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated pursuant to the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Notes, Exchange
Notes or Private Exchange Notes covered by such Registration Statement, and all
other amendments and supplements to any such prospectus, including post-
effective amendments, and all material incorporated by reference or deemed to
be incorporated by reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
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Registration Statement: Any registration statement of the
Company and the Subsidiary Guarantors that covers any of the Notes, Exchange
Notes or Private Exchange Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Shelf Registration: As defined in Section 3 hereof.
Shelf Registration Statement: As defined in Section 3 hereof.
Special Counsel: Xxxxx & Xxxxx, L.L.P., special counsel to the
holders of Transfer Restricted Securities, or such other counsel as shall be
agreed upon by the Issuers and holders of a majority in aggregate principal
amount of Transfer Restricted Securities, the expenses of which holders of
Transfer Restricted Securities will be reimbursed by the Issuers pursuant to
Section 6.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Securities: The Notes, upon original
issuance thereof, and at all times subsequent thereto, each Exchange Note as to
which Section 3(a)(ii) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Note upon original issuance
thereof
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and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) the date on which any such Note has been exchanged by a person
other than a Participating Broker-Dealer for an Exchange Note (other than with
respect to an Exchange Note as to which Section 3(a)(ii) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to Exchange Notes received by
Participating Broker-Dealers in the Exchange Offer, the earlier of (x) the date
on which such Exchange Note has been sold by such Participating Broker-Dealer
by means of the Prospectus contained in the Exchange Offer Registration
Statement and (y) the date on which the Exchange Offer Registration Statement
has been effective under the Securities Act for a period of one year after the
Consummation Date, (iii) a Shelf Registration Statement covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the SEC
and such Note, Exchange Note or Private Exchange Note, as the case may be, has
been disposed of in accordance with such effective Shelf Registration
Statement, (iv) the date on which such Note, Exchange Note or Private Exchange
Note, as the case may be, is distributed to the public pursuant to Rule 144 (or
any similar provisions then in effect) or is saleable pursuant to Rule 144(k)
promulgated by the SEC pursuant to the Securities Act or (v) the date on which
such Note, Exchange Note or Private Exchange Note, as the case may be, ceases
to be outstanding for purposes of the Indenture or any other indenture under
which such Exchange Note or Private Exchange Note was issued.
Trustee: The trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in connection with which securities are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. EXCHANGE OFFER.
a. To the extent not prohibited by any applicable law or applicable
interpretation of the SEC or the staff of the SEC, the Issuers shall (A)
prepare and, on or prior to 60 days after the date of original issuance of the
Notes (the "Issue Date"), file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to the holders of the
Notes to issue and deliver to such holders, in exchange for Notes, a like
principal amount of Exchange Notes, (B) use their best efforts to cause the
Registration Statement relating to the Exchange Offer to be declared effective
by the SEC under the Securities Act on or prior to 180 days after the Issue
Date, and (C) commence the Exchange Offer and use best efforts to issue, on or
prior to the Consummation Date, the Exchange Notes. The offer and sale of the
Exchange Notes pursuant to the Exchange Offer shall be registered pursuant to
the Securities Act on the appropriate form (the "Exchange Offer Registration
Statement") and duly registered or qualified under all applicable state
securities or Blue Sky laws and will comply with all applicable tender offer
rules and regulations under the Exchange Act and state securities or Blue Sky
laws. The Exchange Offer shall not be subject to any condition, other than
that the Exchange Offer does not violate any applicable law or interpretation
of the SEC or the staff of the SEC. Upon consummation of the Exchange Offer in
accordance with this Section 2, the Issuers shall have no further registration
obligations other than with respect to (i) Private Exchange Notes, (ii)
Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange
Notes as to which Section 3(a)(ii) hereof applies. No securities shall be
included in the Exchange Offer Registration Statement other than the Exchange
Notes.
b. The Issuers may require each holder of Notes as a condition to
its participation in the Exchange Offer to represent to the Issuers and their
counsel in writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the Exchange Offer (i) any
Exchange Notes received by such holder will be acquired in the ordinary course
of its business, (ii) such holder will
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have no arrangement or understanding with any person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes
and (iii) such holder is not an Affiliate of an Issuer, or if it is an
Affiliate of an Issuer, it will comply with the registration and prospectus
delivery requirements of the Securities Act, to the extent applicable.
c. To the extent not prohibited by applicable law or applicable
interpretation of the SEC or the staff of the SEC, if, prior to consummation of
the Exchange Offer, the Initial Purchaser holds any Notes acquired by it and
having, or which are reasonably likely to be determined to have, the status of
an unsold allotment in the initial distribution, or any other holder of Notes
is not entitled to participate in the Exchange Offer, the Company upon the
request of the Initial Purchaser or any such holder shall, simultaneously with
the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
the Initial Purchaser and any such holder, in exchange (the "Private Exchange")
for such Notes held by the Initial Purchaser and any such holder, a like
principal amount of debt securities of the Company, guaranteed by each of the
Subsidiary Guarantors on an unsecured senior basis, that are identical in all
material respects to the Exchange Notes (the "Private Exchange Notes") (and
which are issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
d. Unless the Exchange Offer would not be permitted by any
applicable law or interpretation of the SEC or the staff of the SEC, the
Company shall mail the Exchange Offer Prospectus and appropriate accompanying
documents, including appropriate letters of transmittal, to each holder of
Notes providing, in addition to such other disclosures as are required by
applicable law:
i. that the Exchange Offer is being made pursuant to this
Agreement and that all Notes validly tendered will be accepted for
exchange;
ii. the date of acceptance for exchange (the "Exchange Date"),
which date shall in no event be later than the Consummation Date (unless
otherwise required by applicable law);
iii. that holders of Notes electing to have a Note exchanged
pursuant to the Exchange Offer will be required to surrender such Note,
together with the enclosed letters of transmittal, to the institution
and at the address (located in the city of New York) specified in the
notice prior to the close of business on the Exchange Date; and
iv. that holders of Notes that do not tender all such
securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Notes not tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer or the
Private Exchange; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company, and issue, cause the Trustee under the Indenture (or the
indenture pursuant to which the Exchange Notes are issued) to
authenticate, and mail to each holder of Notes, Exchange Notes equal in
principal amount to the principal amount of the Notes surrendered by
such holder.
e. The Issuers and the Initial Purchaser acknowledge that the staff
of the SEC has taken the position that any broker-dealer that owns Exchange
Notes that were received by such broker-dealer for its
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own account in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes). The
Issuers and the Initial Purchaser also acknowledge that the staff of the SEC
has taken the position that if the Prospectus contained in the Exchange Offer
Registration Statement includes a plan of distribution containing a statement
to the above effect and the means by which Participating Broker-Dealers may
resell the Exchange Notes, without naming the Participating Broker Dealers or
specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery
obligations under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act. In light of the foregoing, if requested by
a Participating Broker-Dealer, the Issuers agree (x) to use their best efforts
to keep the Exchange Offer Registration Statement continuously effective for a
period of up to one year or such earlier date as each Participating Broker-
Dealer shall have notified the Company in writing that such Participating
Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer, (y)
to comply with the provisions of Section 5 of this Agreement, as they relate to
the Exchange Offer and the Exchange Offer Registration Statement and (z) to
deliver to such Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as to matters
reasonably requested by such Participating Broker-Dealer relating to the
Exchange Offer Registration Statement and the related Prospectus and any
amendments or supplements thereto.
f. The Initial Purchaser shall have no liability to any
Participating Broker-Dealer with respect to any request made pursuant to
Section 2(e).
g. Accrued but unpaid interest on any Note that is exchanged for an
Exchange Note or a Private Exchange Note pursuant to this Agreement shall be
paid on or before the first interest payment date on the Exchange Notes and the
Private Exchange Notes, as the case may be.
h. The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event shall provide that the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture,
except in any case where an Exchange Note constitutes a Transfer Restricted
Security. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
3. SHELF REGISTRATION.
a. If (i) the Company is not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or SEC policy, (ii) any holder of a
Note notifies the Company on or prior to the Exchange Date that (A) due to a
change in law or policy it is not entitled to participate in the Exchange
Offer, (B) due to a change in law or policy it may not resell the Exchange
Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such holder or
(C) it is a broker-dealer and owns Notes (including the Initial Purchaser that
holds Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from an Issuer or an Affiliate of an Issuer or (iii)
any holder of Private Exchange Notes so requests within 120 days after the
consummation of the Private Exchange (each such event referred to in clauses
(i) through (iii), a "Shelf Filing Event"), the Issuers shall cause to be filed
with the SEC pursuant to
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Rule 415 a shelf registration statement (the "Shelf Registration Statement") on
or prior to the later of (x) 90 days after the Issue Date and (y) 30 days after
the occurrence of such Shelf Filing Event, relating to all Transfer Restricted
Securities (the "Shelf Registration") the holders of which have provided the
information required pursuant to Section 3(b) hereof, and shall use their best
efforts to have the Shelf Registration Statement declared effective by the SEC
on or prior to 90 days after the occurrence of such Shelf Filing Event,
provided that if the Company has not consummated the Exchange Offer within 210
days of the Issue Date, then the Issuers shall cause the Shelf Registration
Statement to be filed with the SEC on or prior to the 211th day after the Issue
Date and shall use their best efforts to have the Shelf Registration Statement
declared effective by the SEC within 60 days of the date of filing thereof. In
such circumstances, the Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, until
(A) the first anniversary of the Issue Date (subject to extension pursuant to
Section 5 hereof) or (B) if sooner, the date immediately following the date
that all Transfer Restricted Securities covered by the Shelf Registration
Statement have been sold pursuant thereto (the "Effectiveness Period");
provided, however, that the Effectiveness Period shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 and as otherwise provided herein.
b. No holder of Transfer Restricted Securities may include any of
its Transfer Restricted Securities in any Shelf Registration Statement pursuant
to this Agreement unless and until such holder furnishes to the Company in
writing, within 30 days after receipt of a request therefor, such information
as the Company may reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary prospectus included
therein. No holder of Transfer Restricted Securities shall be entitled to
Additional Interest pursuant to Section 4 hereof unless and until such holder
shall have provided all such reasonably requested information. Each holder of
Transfer Restricted Securities as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such holder not materially misleading.
4. ADDITIONAL INTEREST.
a. The parties hereto agree that the holders of Transfer Restricted
Securities will suffer damages if the Issuers fail to fulfill their obligations
pursuant to Section 2 or Section 3, as applicable, and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that (i) the applicable Registration Statement is not filed with the SEC on or
prior to the date specified herein for such filing, (ii) the applicable
Registration Statement has not been declared effective by the SEC on or prior
to the date specified herein for such effectiveness after such obligation
arises, (iii) if the Exchange Offer is required to be Consummated hereunder,
the Company has not exchanged Exchange Notes for all Notes validly tendered and
not validly withdrawn in accordance with the terms of the Exchange Offer by the
Consummation Date or (iv) the applicable Registration Statement is filed and
declared effective but shall thereafter cease to be effective without being
succeeded immediately by any additional Registration Statement covering the
Notes, the Exchange Notes or the Private Exchange Notes, as the case may be,
which has been filed and declared effective (each such event referred to in
clauses (i) through (iv), a "Registration Default"), then the interest rate on
Transfer Restricted Securities will increase ("Additional Interest"), with
respect to the first 90-day period immediately following the occurrence of such
Registration Default, by 0.50% per annum and will increase by an additional
0.50% per annum with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of 2% per annum
with respect to all Registration Defaults. Following the cure of a
Registration Default, the accrual of Additional Interest with respect to such
Registration Default will cease and upon the cure of all Registration Defaults
the interest rate will revert to the original rate.
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b. The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which the Transfer Restricted Securities are issued) immediately upon the
happening of each and every Registration Default. The Company shall pay the
Additional Interest due on the Transfer Restricted Securities by depositing
with the paying agent (which shall not be the Company for these purposes) for
the Transfer Restricted Securities, in trust, for the benefit of the holders
thereof, prior to 11:00 A.M. on the next interest payment date specified by the
Indenture (or such other indenture), sums sufficient to pay the Additional
Interest then due. The Additional Interest due shall be payable on each
interest payment date specified by the Indenture (or such other indenture) to
the record holder entitled to receive the interest payment to be made on such
date. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the date of the applicable Registration Default.
c. The parties hereto agree that the Additional Interest provided
for in this Section 4 constitutes a reasonable estimate of the damages that
will be suffered by holders of Transfer Restricted Securities by reason of the
happening of any Registration Default.
5. REGISTRATION PROCEDURES.
In connection with the Issuers' registration obligations
hereunder, the Issuers shall effect such registrations on the appropriate form
available for the sale of the Notes, the Exchange Notes or Private Exchange
Notes, as applicable, to (i) in the case of the Exchange Offer, permit the
exchange of Exchange Notes for Notes in the Exchange Offer and, if applicable,
resales of Exchange Notes by Participating Broker-Dealers and (ii) in the case
of a Shelf Registration, permit the sale of the applicable Transfer Restricted
Securities in accordance with the method or methods of disposition thereof
specified by the holders of such Transfer Restricted Securities, and pursuant
thereto the Issuers shall as expeditiously as possible:
a. in the case of a Shelf Registration, a reasonable period of time
prior to the initial filing of a Shelf Registration Statement or Prospectus and
a reasonable period of time prior to the filing of any amendment or supplement
thereto (including any document that would be incorporated or deemed to be
incorporated therein by reference), furnish to the holders of the Transfer
Restricted Securities included in such Shelf Registration Statement, their
Special Counsel and the managing underwriters, if any, copies of all such
documents proposed to be filed, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of
such holders, their Special Counsel and such underwriters, if any, and cause
the officers and directors of the Issuers, counsel to the Issuers and
independent certified public accountants to the Issuers to respond to such
reasonable inquiries as shall be necessary, in the opinion of respective
counsel to such holders and such underwriters, to conduct a reasonable
investigation within the meaning of the Securities Act; provided, however, that
the foregoing inspection and information gathering shall be coordinated by the
Initial Purchaser, and on behalf of any other persons by one counsel designated
by and on behalf of such other persons; and provided, further, that the Issuers
shall not be deemed to have kept a Shelf Registration Statement effective
during the applicable period if any of them voluntarily takes or fails to take
any reasonable action that results in holders of the Transfer Restricted
Securities covered thereby not being able to sell such Transfer Restricted
Securities pursuant to Federal securities laws during that period (and the time
period during which such Shelf Registration Statement is required to remain
effective hereunder shall be extended by the number of days during which such
holders of Transfer Restricted Securities are not able to sell such Transfer
Restricted Securities). The Issuers shall not file any such Shelf Registration
Statement or related Prospectus or any amendments or supplements thereto to
which the holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such Shelf Registration Statement shall
reasonably object on a timely basis;
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b. prepare and file with the SEC such amendments, including post-
effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable time
period required hereunder; cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424; and comply with the provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered by such
Registration Statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in such Registration
Statement as so amended or in such Prospectus as so supplemented;
c. notify the holders of Transfer Restricted Securities to be sold
or, in the case of Transfer Restricted Securities tendered for in an Exchange
Offer, their Special Counsel and the managing underwriters, if any, promptly,
and (if requested by any such person), confirm such notice in writing, (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment is
proposed to be filed and (B) with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of any
request by the SEC or any other Federal or state governmental authority for
amendments or supplements to a Registration Statement or related Prospectus or
for additional information, (iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any stop
order, order or injunction suspending or enjoining the use of a Prospectus or
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Notes, Exchange Notes or Private Exchange
Notes for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the happening of any event or
information becoming known that makes any statement made in a Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus
or documents so that it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case
of a Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading;
d. use their best efforts to avoid the issuance of or, if issued,
obtain the withdrawal of any order enjoining or suspending the use of a
Prospectus or the effectiveness of a Registration Statement or the lifting of
any suspension of the qualification (or exemption from qualification) of any of
the Notes, Exchange Notes or Private Exchange Notes for sale in any
jurisdiction, at the earliest practicable moment;
e. if a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
being sold pursuant to such Shelf Registration Statement, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment such
information as the managing underwriters, if any, and such holders reasonably
believe should be included therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment under the Securities Act
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, however, that the Issuers shall not be required to take
any action pursuant to this Section 5(e) that would, in the opinion of counsel
for the Issuers, violate applicable law;
f. upon written request to the Company, furnish to each holder of
Notes, Exchange Notes or Private Exchange Notes to be exchanged or sold
pursuant to a Registration Statement, their Special Counsel and each managing
underwriter, if any, without charge, at least one conformed copy of such
Registration
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Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits to the extent requested (including those previously
furnished or incorporated by reference) as soon as practicable after the filing
of such documents with the SEC;
g. deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration Statement,
their Special Counsel and the underwriters, if any, without charge, as many
copies of the Prospectus (including each form of prospectus) and each amendment
or supplement thereto as such persons reasonably request; and the Issuers
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling holders of Transfer Restricted Securities and
the underwriters, if any, in connection with the offering and sale of the
Transfer Restricted Securities covered by such Prospectus and any amendment or
supplement thereto;
h. prior to any public offering of Notes, Exchange Notes or Private
Exchange Notes, use their best efforts to register or qualify or cooperate with
the holders of Notes, Exchange Notes or Private Exchange Notes to be sold or
tendered for the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Notes, Exchange Notes or Private
Exchange Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any such holder or underwriter
reasonably requests in writing; keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective hereunder and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Notes, Exchange Notes or Private Exchange Notes covered by
the applicable Registration Statement; provided, however, that the Issuers
shall not be required to (i) qualify generally to do business in any
jurisdiction where they are not then so qualified or (ii) take any action which
would subject them to general service of process or to taxation in any
jurisdiction where they are not so subject;
i. in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the holders thereof and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company and to enable such
Transfer Restricted Securities to be in such authorized denominations and
registered in such names as the managing underwriters, if any, or such holders
may request at least two Business Days prior to any sale of Transfer Restricted
Securities;
j. upon the occurrence of any event contemplated by Section 5(c)(v),
as promptly as practicable, prepare a supplement or amendment, including, if
appropriate, a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, and file any other required document so
that, as thereafter delivered, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
k. prior to the effective date of the Exchange Offer Registration
Statement, to provide a CUSIP number for the Exchange Notes (and Private
Exchange Notes if applicable);
l. if a Shelf Registration Statement is filed pursuant to Section 3
hereof, enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in
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underwritten offerings) and take all such other reasonable actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold) in order to expedite
or facilitate the disposition of such Transfer Restricted Securities, and,
whether or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration, (i) make such representations and
warranties to the holders of such Transfer Restricted Securities and the
underwriters, if any, with respect to the business of the Company and its
subsidiaries (including with respect to businesses or assets acquired or to be
acquired by any of them), and the Shelf Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and Special
Counsel to the holders of the Transfer Restricted Securities being sold),
addressed to each selling holder of Transfer Restricted Securities and each of
the underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Special Counsel and underwriters; (iii) use their best
efforts to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data is, or is required to be, included in the Shelf Registration
Statement), addressed (where reasonably possible) to each selling holder of
Transfer Restricted Securities and each of the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with underwritten offerings;
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by such
Shelf Registration Statement and the managing underwriters, if any); and (v)
deliver such documents and certificates as may be reasonably requested by the
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold, their Special Counsel and the managing underwriters, if
any, to evidence the continued validity of the representations and warranties
made pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Issuers;
m. in the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer Restricted Securities
being sold, any underwriter participating in any such disposition of Transfer
Restricted Securities, and any attorney, consultant or accountant retained by
such selling holders or underwriter, at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries (including with
respect to businesses and assets acquired or to be acquired to the extent that
such information is available to the Company), and cause the officers,
directors, agents and employees of the Company and its subsidiaries (including
with respect to businesses and assets acquired or to be acquired to the extent
that such information is available to the Company) to supply all information in
each case reasonably requested by any such representative, underwriter,
attorney, consultant or accountant in connection with such Shelf Registration;
provided, however, that such persons shall first agree in writing with the
Company that any information that is reasonably and in good faith designated by
the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless (i) disclosure
of such information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities, (ii) disclosure of
such information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of the Shelf
Registration Statement or the use of any Prospectus),
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(iii) such information becomes generally available to the public other than as
a result of a disclosure or failure to safeguard such information by such
person or (iv) such information becomes available to such person from a source
other than the Company and its subsidiaries and such source is not bound by a
confidentiality agreement; and provided, further, that the foregoing inspection
and information gathering shall be coordinated by the Initial Purchaser and on
behalf of any other persons, by one counsel designated by and on behalf of such
other persons;
n. provide an indenture trustee for the Notes and/or the Exchange
Notes and Private Exchange Notes, as the case may be, and cause an indenture to
be qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Notes and/or the Exchange Notes and
Private Exchange Notes, as the case may be; and if such indenture shall be the
Indenture, in connection therewith, cooperate with the Trustee and the holders
of the Notes and/or the Exchange Notes and Private Exchange Notes, to effect
such changes to the Indenture as may be required for the Indenture to be (or to
remain) so qualified in accordance with the terms of the TIA; and execute, and
use its best efforts to cause the Trustee to execute, all customary documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to be (or to remain)
so qualified in a timely manner;
o. comply with all applicable rules and regulations of the SEC and
make generally available to their security holders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158,
no later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i) commencing
at the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter after the effective date of a
Registration Statement, which statement shall cover said period, consistent
with the requirements of Rule 158; and
p. cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.
The Issuers may require a holder of Transfer Restricted
Securities to be included in a Registration Statement to furnish to the Issuers
such information regarding the distribution of such Transfer Restricted
Securities as is required by law to be disclosed in such Registration Statement
and the Issuers may exclude from such Registration Statement the Transfer
Restricted Securities of any holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
If any such Registration Statement refers to any holder by name
or otherwise as the holder of any securities of an Issuer, then such holder
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to such holder, to the effect that the
holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Issuers'
securities covered thereby and that such holding does not imply that such
holder will assist in meeting any future financial requirements of the Issuers
or (ii) in the event that such reference to such holder by name or otherwise is
not required by the Securities Act, the deletion of the reference to such
holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
In the case of a Shelf Registration pursuant to Section 3 hereof,
each holder of Transfer Restricted Securities agrees by acquisition of such
Transfer Restricted Securities that, upon receipt of any
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notice from the Company of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iii), 5(c)(iv) or 5(c)(v) hereof, such holder will
forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement or Prospectus until such holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing (the "Advice") by the
Company that the use of the applicable Prospectus may be resumed, and, in
either case, has received copies of any additional or supplemental filings that
are incorporated or deemed to be incorporated by reference in such Prospectus.
If the Company shall give any such notice, the Effectiveness Period shall be
extended by the number of days during such period from and including the date
of the giving of such notice to and including the date when each holder of
Transfer Restricted Securities covered by such Registration Statement shall
have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or (y) the Advice, and, in either case, has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus.
6. REGISTRATION EXPENSES.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not any Registration Statement is filed or becomes effective and
whether or not any Notes, Exchange Notes or Private Exchange Notes are issued
or sold pursuant to any Registration Statement. The fees and expenses referred
to in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses
(A) with respect to filings required to be made with the National Association
of Securities Dealers, Inc. and (B) in compliance with securities or Blue Sky
laws), (ii) printing expenses (including, without limitation, expenses of
printing Prospectuses), (iii) reasonable fees and disbursements of counsel for
the Issuers and the Special Counsel, (iv) fees and disbursements of all
independent certified public accountants referred to in Section 2(e) and
Section 5(l)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) if required by applicable law, including the rules of the
National Association of Securities Dealers, Inc., the reasonable fees and
expenses of any "qualified independent underwriter" and its counsel and (vi)
fees and expenses of all other persons retained by the Issuers. In addition,
the Issuers shall pay their internal expenses (including, without limitation,
all salaries and expenses of their respective officers and employees performing
legal or accounting duties), the expense of any annual audit and the fees and
expenses incurred in connection with the listing of the Notes, Exchange Notes
or Private Exchange Notes to be registered on any securities exchange.
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each holder of Transfer Restricted Securities shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes,
Exchange Notes or Private Exchange Notes sold by it.
7. INDEMNIFICATION.
a. The Issuers agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each holder of Notes, Exchange Notes and
Private Exchange Notes and each Participating Broker-Dealer, (ii) each person,
if any, who controls (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act) any of the foregoing (any of the persons referred to in
this clause (ii) being hereinafter referred to as a ("controlling person")) and
(iii) the respective officers, directors, partners, employees, representatives
and agents of the Initial Purchaser, each holder of Notes, Exchange Notes and
Private Exchange Notes, each Participating Broker-Dealer and any controlling
person (any person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as an "Indemnified Person"), from and against any and all losses,
claims, damages, liabilities and judgments arising out of or relating to any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement, Prospectus or
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preliminary prospectus or in any amendment or supplement thereto, or arising
out of or relating to any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein (in the case of any Prospectus or preliminary prospectus or supplement
thereto, in light of the circumstances under which they were made) not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Indemnified Person
furnished in writing to the Issuers by or on behalf of such Indemnified Person
expressly for use therein; provided, that the indemnity agreement contained in
this Section 7(a) with respect to any preliminary prospectus or amended
preliminary prospectus shall not inure to the benefit of any Indemnified Person
from whom the person asserting any such loss, expense, liability or claim
purchased the securities which is the subject thereof, if the Prospectus
corrected any such alleged untrue statement or omission and if such Indemnified
Person failed to send or give a copy of the written Prospectus, excluding any
documents incorporated by reference, to such person at or prior to the written
confirmation of the sale of securities to such person, provided that the Issuer
has delivered the Prospectus to the Initial Purchaser in requisite quantity on
a timely basis to permit such delivery or sending.
b. In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or
preliminary prospectus or any amendment or supplement thereto and with respect
to which indemnity may be sought against the Issuers hereunder, such
Indemnified Person shall promptly notify the Issuers in writing and the Company
shall assume the defense thereof, including the employment of counsel
reasonably satisfactory to such Indemnified Person and payment of all fees and
expenses. Any Indemnified Person shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Indemnified
Person, unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Issuers, (ii) the Company shall have failed to
assume the defense and employ counsel or pay all such fees and expenses or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and an Issuer and such Indemnified Person
shall have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
any such Issuer (in which case the Company shall not have the right to assume
the defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers shall not, in connection with any one
such action or separate but substantially similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm
of attorneys (in addition to any local counsel) for all such Indemnified
Persons, which firm shall be designated in writing by such Indemnified Persons,
and that all such reasonable fees and expenses shall be reimbursed as they are
incurred). The Issuers shall not be liable for any settlement of any such
action effected without their written consent but if settled with the written
consent of the Issuers, the Issuers agree, jointly and severally, to indemnify
and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement. No Issuer shall, without the prior
written consent of each Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
a party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding.
c. In connection with any Registration Statement pursuant to which a
holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, their respective directors and officers and any
person controlling an Issuer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Issuers to each Indemnified Person but only with respect to
information relating to such holder furnished in writing by or on behalf of
such holder expressly
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for use in such Registration Statement. In any such case in which any action
shall be brought against an Issuer, any director or officer of an Issuer or any
person controlling an Issuer based on such Registration Statement and in
respect of which indemnity may be sought against a holder of Transfer
Restricted Securities, such holder shall have the rights and duties given to
the Issuers (except that if an Issuer shall have assumed the defense thereof,
such holder shall not be required to do so, but may employ separate counsel
therein and participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such holder), and the Issuers, their
respective directors and officers and any person controlling an Issuer shall
have the rights and duties given to the Indemnified Persons by Section 7(b)
hereof.
d. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by each indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the
Notes, the Exchange Notes or the Private Exchange Notes, as the case may be (it
being expressly understood and agreed that the relative benefits received by
the Issuers from the offering of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, shall be the amount of the net proceeds received by
the Company from the sale of the Notes to the Initial Purchaser), or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of each
indemnifying party on the one hand and the indemnified party on the other hand
in connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of each indemnifying party on the
one hand and the indemnified party on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by an indemnifying party or such indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Issuers and the Initial Purchaser agree that it would not be
just and equitable if contribution pursuant to this Section 7(d) were
determined by pro rata allocation (even if the Indemnified Person were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Indemnified Person shall be required to contribute any amount in excess of the
amount by which the net profits received by it in connection with the sale of
the Notes, Exchange Notes or Private Exchange Notes contemplated by this
Agreement exceeds the amount of any damages which such Indemnified Person has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Indemnified Person's obligations to
contribute pursuant to this Section 7(d) are several in proportion to the
respective amount of Notes, Exchange Notes or Private Exchange Notes included
in any such Registration Statement by each Indemnified Person and not joint.
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8. RULES 144 AND 144A.
Each of the Issuers shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time it is not required to file such
reports but in the past had been required to or did file such reports, it will,
upon the request of any holder of Transfer Restricted Securities, make
available other information as required by, and so long as necessary to permit,
sales of its Transfer Restricted Securities pursuant to Rule 144A.
Notwithstanding the foregoing, nothing in this Section 8 shall be deemed to
require an Issuer to register any of its securities pursuant to the Exchange
Act.
9. UNDERWRITTEN REGISTRATIONS.
If any of the Transfer Restricted Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by the holders of a majority in aggregate principal amount of
such Transfer Restricted Securities included in such offering, subject to the
consent of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder unless
such person (i) agrees to sell such Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
a. Remedies. In the event of a breach by an Issuer or by a holder
of Notes, Exchange Notes or Private Exchange Notes of any of its obligations
under this Agreement, each holder of Notes, Exchange Notes or Private Exchange
Notes and each Issuer, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Subject to Section 4 hereof,
the Issuers and each holder of Notes, Exchange Notes and Private Exchange Notes
agree that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach of any of the provisions of this Agreement and
each hereby further agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
b. No Inconsistent Agreements. The Issuers will not enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the holders of Notes, Exchange Notes and Private Exchange Notes and
Indemnified Persons in this Agreement or otherwise conflicts with the
provisions hereof. Without the written consent of the holders of a majority in
aggregate principal amount of the outstanding Transfer Restricted Securities,
the Issuers shall not grant to any person any rights which conflict with or are
inconsistent with the provisions of this Agreement.
c. No Piggyback on Registrations. The Issuers shall not grant to
any of their security holders (other than the holders of Transfer Restricted
Securities in such capacity) the right to include any of their securities in
any Registration Statement other than Transfer Restricted Securities.
d. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the holders
of not less than a majority of the then outstanding aggregate principal amount
of Transfer Restricted Securities;
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provided, however, that, for the purposes of this Agreement, Transfer
Restricted Securities that are owned, directly or indirectly, by the Issuers or
any of their Affiliates are not deemed outstanding. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of holders of
Transfer Restricted Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Transfer Restricted Securities may be given by
holders of a majority in aggregate principal amount of the Transfer Restricted
Securities being sold by such holders pursuant to such Registration Statement;
and provided, further, that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence. Notwithstanding the foregoing, no amendment,
modification, supplement, waiver or consent with respect to Section 7 shall be
made or given otherwise than with the prior written consent of each Indemnified
Person affected thereby.
e. Notices. All notices and other communications provided for
herein shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex or telecopier:
i. if to the Issuers, as provided in the Purchase Agreement,
ii. if to the Initial Purchaser, as provided in the Purchase
Agreement, or
iii. if to any other person who is then the registered holder
of Notes, Exchange Notes or Private Exchange Notes, to the address of
such holder as it appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such communications shall
be deemed to have been duly given: when delivered by hand, if personally
delivered; one Business Day after being timely delivered to a next-day air
courier; five Business Days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
f. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each holder of Notes, Exchange
Notes and Private Exchange Notes. The Issuers may not assign any of their
rights or obligations hereunder without the prior written consent of each
holder of Transfer Restricted Securities and each Indemnified Person.
Notwithstanding the foregoing, no successor or assignee of an Issuer shall have
any of the rights granted under this Agreement until such person shall
acknowledge its rights and obligations hereunder by a signed written statement
of such person's acceptance of such rights and obligations.
g. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
h. Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF ANY
COMPETENT NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY
OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE
CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND EACH
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IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS.
i. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
j. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
XXXXXX INTERNATIONAL INC.
By:
------------------------------------
Xxxxx X. Xxxx
President and Chief Executive
Officer
XXXXXX ENERGY SERVICES, INC.
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXX INTERNATIONAL SALES CORPORATION
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
COLUMBIA PETROLEUM SERVICES CORP.
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
INTERNATIONAL PETROLEUM SERVICES, INC.
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
113
XXXXXX ENVIRONMENTAL REMEDIATION
TECHNOLOGIES, INC.
By:
------------------------------------
Xxxxx X. Xxxxx
Treasurer
XXXXXX WORLDWIDE SERVICES, CORP.
By:
------------------------------------
Xxxxx X. Xxxxx
Treasurer
AIR DRILLING INTERNATIONAL, INC.
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
AIR DRILLING SERVICES, INC.
By:
------------------------------------
Xxxxx X. Xxxxx
Vice President
XXXXXXXXX & COMPANY, INC.
By:
----------------------------
Xxx Xxxx
Vice President
