Exhibit T3C
STERLING CHEMICALS, INC.
as Issuer
STERLING CHEMICALS ENERGY, INC.,
as Guarantor
10% SENIOR SECURED NOTES DUE 2007
INDENTURE
Dated December 19, 2002
_________________________________
NATIONAL CITY BANK, a National Banking Association,
as Trustee
_________________________________
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
310(a)(1)............................................. 7.10
(a)(2)................................................ 7.10
(a)(3)................................................ N.A.
(a)(4)................................................ N.A.
(a)(5)................................................ 7.10
(b)................................................... 7.10
(c)................................................... N.A.
311(a)................................................ 7.11
(b)................................................... 7.11
(c)................................................... N.A.
312(a)................................................ 2.05
(b)................................................... 12.03
(c)................................................... 12.03
313(a)................................................ 7.06
(b)(1)................................................ 10.03
(b)(2)................................................ 7.07
(c)................................................... 7.06; 12.02
(d)................................................... 7.06
314(a)................................................ 4.03; 12.02
(b)................................................... 10.02
(c)(1)................................................ N.A
(c)(2)................................................ N.A.
(c)(3)................................................ N.A.
(d)................................................... 10.03, 10.04, 10.05
(e)................................................... 12.05
(f)................................................... N.A.
315(a)................................................ N.A.
(b)................................................... N.A.
(c)................................................... N.A.
(d)................................................... N.A.
(e)................................................... N.A.
316(a) (last sentence)................................ N.A.
(a)(1)(A)............................................. N.A.
(a)(1)(B)............................................. N.A.
(a)(2)................................................ N.A.
(b)................................................... N.A.
(c)................................................... N.A.
317(a)(1)............................................. N.A.
(a)(2)................................................ N.A.
(b)................................................... N.A.
318(a)................................................ N.A.
(b)................................................... N.A.
(c)................................................... 12.01
N.A. means not applicable.
*..........This Cross Reference Table is not part of the Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................................................1
Section 1.01. Definitions..........................................................................................1
Section 1.02. Other Definitions...................................................................................20
Section 1.03. Incorporation by Reference of Trust Indenture Act...................................................21
Section 1.04. Rules of Construction...............................................................................21
ARTICLE 2 THE NOTES...........................................................................................22
Section 2.01. Form and Dating.....................................................................................22
Section 2.02. Execution and Authentication........................................................................22
Section 2.03. Registrar and Paying Agent..........................................................................23
Section 2.04. Paying Agent to Hold Money in Trust.................................................................23
Section 2.05. Lists...............................................................................................24
Section 2.06. Transfer and Exchange...............................................................................24
Section 2.07. Replacement Notes...................................................................................27
Section 2.08. Outstanding Notes...................................................................................27
Section 2.09. Treasury Notes......................................................................................28
Section 2.10. Temporary Notes.....................................................................................28
Section 2.11. Cancellation........................................................................................28
Section 2.12. Defaulted Interest..................................................................................28
Section 2.13. Exemption From Federal and State Law Securities Registration Requirements...........................29
ARTICLE 3 REDEMPTION AND PREPAYMENT...........................................................................29
Section 3.01. Notices to Trustee..................................................................................29
Section 3.02. Selection of Notes to Be Redeemed...................................................................29
Section 3.03. Notice of Redemption................................................................................29
Section 3.04. Effect of Notice of Redemption......................................................................30
Section 3.05. Deposit of Redemption Price.........................................................................30
Section 3.06. Notes Redeemed in Part..............................................................................31
Section 3.07. Optional Redemption.................................................................................31
Section 3.08. Mandatory Redemption................................................................................31
Section 3.09. Offer to Purchase by Application of Net Available Cash..............................................31
ARTICLE 4 COVENANTS...........................................................................................33
Section 4.01. Payment of Notes....................................................................................33
Section 4.02. Maintenance of Office or Agency.....................................................................34
Section 4.03. Reports.............................................................................................35
Section 4.04. Compliance Certificate..............................................................................35
Section 4.05. Taxes...............................................................................................36
Section 4.06. Stay, Extension and Usury Laws......................................................................36
Section 4.07. Limitation on Dividends.............................................................................36
Section 4.08. Limitation on Restricted Payments...................................................................36
Section 4.09. Limitation on Restrictions on Distributions from Subsidiaries.......................................37
Section 4.10. Limitation on Debt..................................................................................38
Section 4.11. Asset Sales.........................................................................................39
Section 4.12. Limitation on Transactions with Affiliates..........................................................40
Section 4.13. Liens...............................................................................................41
Section 4.14. Corporate Existence.................................................................................41
Section 4.15. Offer to Repurchase Upon Change of Control..........................................................41
Section 4.16. Sale of the Texas City Facilities...................................................................43
Section 4.17. Limitation on the Sale or Issuance of Capital Stock of Subsidiaries.................................43
Section 4.18. INTENTIONALLY OMITTED...............................................................................44
Section 4.19. Additional Subsidiaries.............................................................................44
Section 4.20. Capital Expenditures................................................................................44
Section 4.21 Excluded Subsidiaries...............................................................................44
ARTICLE 5 SUCCESSORS..........................................................................................45
Section 5.01. Xxxxxx, Consolidation or Sale of Assets.............................................................45
Section 5.02. Successor Corporation Substituted...................................................................46
ARTICLE 6 DEFAULTS AND REMEDIES...............................................................................46
Section 6.01. Events of Default...................................................................................46
Section 6.02. Acceleration........................................................................................48
Section 6.03. Other Remedies......................................................................................48
Section 6.04. Waiver of Past Defaults.............................................................................49
Section 6.05. Control by Majority.................................................................................49
Section 6.06. Limitation on Suits.................................................................................49
Section 6.07. Rights of Holders of Notes to Receive Payment.......................................................50
Section 6.08. Collection Suit by Trustee..........................................................................50
Section 6.09. Trustee May File Proofs of Claim....................................................................50
Section 6.10. Priorities..........................................................................................51
Section 6.11. Undertaking for Costs...............................................................................51
ARTICLE 7 TRUSTEE.............................................................................................51
Section 7.01. Duties of Trustee...................................................................................51
Section 7.02. Rights of Trustee...................................................................................52
Section 7.03. Individual Rights of Trustee........................................................................53
Section 7.04. Trustee's Disclaimer................................................................................53
Section 7.05. Notice of Defaults..................................................................................53
Section 7.06. Reports by Trustee to Holders of the Notes..........................................................53
Section 7.07. Compensation and Indemnity..........................................................................54
Section 7.08. Replacement of Trustee..............................................................................55
Section 7.09. Successor Trustee by Xxxxxx, etc....................................................................56
Section 7.10. Eligibility; Disqualification.......................................................................56
Section 7.11. Preferential Collection of Claims Against Company...................................................56
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE............................................................56
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance............................................56
Section 8.02. Legal Defeasance and Discharge......................................................................56
Section 8.03. Covenant Defeasance.................................................................................57
Section 8.04. Conditions to Legal or Covenant Defeasance..........................................................57
Section 8.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions.......................................................58
Section 8.06. Repayment to Company................................................................................59
Section 8.07. Reinstatement.......................................................................................59
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER....................................................................60
Section 9.01. Without Consent of Holders of Notes.................................................................60
Section 9.02. With Consent of Holders of Notes....................................................................61
Section 9.03. Compliance with Trust Indenture Act.................................................................62
Section 9.04. Revocation and Effect of Consents...................................................................62
Section 9.05. Notation on or Exchange of Notes....................................................................63
Section 9.06. Trustee to Sign Amendments, etc.....................................................................63
ARTICLE 10 COLLATERAL AND SECURITY.............................................................................63
Section 10.01. Security Documents..................................................................................63
Section 10.02. Recording and Opinions..............................................................................64
Section 10.03. Release of Pledged Collateral.......................................................................64
Section 10.04. Certificates of the Company.........................................................................65
Section 10.05. Certificates of the Trustee.........................................................................65
Section 10.06. Attornment..........................................................................................66
Section 10.07. Authorization of Actions to Be Taken by the Trustee Under the
Security Documents..................................................................................66
Section 10.08. Authorization of Receipt of Funds by the Trustee Under the
Security Documents..................................................................................67
Section 10.09. Termination of Security Interest....................................................................67
ARTICLE 11 SUBSIDIARY GUARANTEES...............................................................................67
Section 11.01. Subsidiary Guarantees...............................................................................67
Section 11.02. Limitation on Subsidiary Guarantor Liability........................................................69
Section 11.03. Execution and Delivery of Subsidiary Guarantee......................................................69
Section 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.......................................70
Section 11.05. Releases Following Sale of Assets...................................................................70
ARTICLE 12 HOLDERS' MEETINGS...................................................................................71
Section 12.01. Purposes of Meetings................................................................................71
Section 12.02. Place of Meetings...................................................................................72
Section 12.03. Call and Notice of Meetings.........................................................................72
Section 12.04. Action Without Meeting..............................................................................72
Section 12.05. Voting at Meetings..................................................................................72
Section 12.06. Voting Rights, Conduct and Adjournment..............................................................73
Section 12.07. Revocation of Consent by the Holders................................................................73
Section 12.08. No Delay of Rights by Meeting.......................................................................74
ARTICLE 13 MISCELLANEOUS.......................................................................................74
Section 13.01. Trust Indenture Act Controls........................................................................74
Section 13.02. Notices.............................................................................................74
Section 13.03. Communication by Holders of Notes with Other Holders of Notes.......................................75
Section 13.04. Certificate and Opinion as to Conditions Precedent..................................................75
Section 13.05. Statements Required in Certificate or Opinion.......................................................76
Section 13.06. Rules by Trustee and Agents.........................................................................76
Section 13.07. No Personal Liability of Directors, Officers, Employees and Stockholders............................76
Section 13.08. Governing Law.......................................................................................76
Section 13.09. No Adverse Interpretation of Other Agreements.......................................................77
Section 13.10. Successors..........................................................................................77
Section 13.11. Severability........................................................................................77
Section 13.12. Counterpart Originals...............................................................................77
Section 13.13. Table of Contents, Headings, etc....................................................................77
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF NOTATION OF GUARANTEE
INDENTURE, dated December 19, 2002, among Sterling
Chemicals, Inc., a Delaware corporation, Sterling Chemicals Energy, Inc., a
Delaware corporation and National City Bank, as trustee.
The Company (as defined below), the Subsidiary Guarantors
(as defined below) and the Trustee (as defined below) agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the 10% Senior Secured Notes due 2007 (the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
-----------
"Additional Notes" means Notes issued in payment of
interest on Notes pursuant to Section 4.01 hereof.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. For purposes of the provisions of Section 4.12 only, "Affiliate"
shall also mean any beneficial owner (as defined in Rules 13d-3 and 13d-5
under the Exchange Act) of Capital Stock representing 10% or more of the total
voting power of the Voting Stock (on a fully diluted basis) of the Company and
any Person who would be an Affiliate of any such beneficial owner pursuant to
the first sentence hereof.
"Agent" means the Registrar or the Paying Agent.
"Applicable Procedures" means, with respect to any
transfer or exchange of or for beneficial interests in any Global Note, the
rules and procedures of the Depositary that apply to such transfer or
exchange.
"Asset Disposition" means any sale, lease, transfer or
other disposition (or series of related sales, leases, transfers or
dispositions) of shares of Capital Stock of a Subsidiary (other than
directors' qualifying shares), property or other assets (each referred to for
the purposes of this definition as a "disposition") by the Company or any of
its Subsidiaries, including any disposition by means of a merger,
consolidation or similar transaction, for gross proceeds in excess of $2.0
million, other than:
(1) a disposition by a Subsidiary to the Company or by
the Company or a Subsidiary to a Wholly Owned Subsidiary which is also a
Subsidiary Guarantor,
(2) a disposition of property or assets (other than
shares of Capital Stock of a Subsidiary or property or assets which constitute
all or substantially all of the assets of any division or line of business of
the Company or any Subsidiary) at fair market value in the ordinary course of
business including sales of inventory,
(3) for purposes of the provisions of Section 4.11 only,
a disposition that constitutes a Restricted Payment permitted or a Permitted
Investment not prohibited by the provisions of Section 4.08,
(4) the disposition of all or substantially all of the
assets of the Company permitted by the provisions of Section 5.01,
(5) the disposition of assets in exchange for other
assets that satisfies the requirements set forth in clause (2)(A) of Section
4.11,
(6) the disposition of the Fibers Assets; and
(7) a Sale of the Texas City Facilities.
"Attributable Debt" in respect of a Sale/Leaseback
Transaction means, as at the time of determination, the present value
(discounted at the interest rate borne by the Notes for interest payments made
in cash compounded annually) of the total obligations of the lessee for rental
payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Authentication Order" shall have the meaning set forth
in Section 2.02.
"Average Life" means, as of the date of determination,
with respect to any Debt or Preferred Stock, the quotient obtained by
dividing:
(1) the sum of the products of numbers of years from the
date of determination to the dates of each successive scheduled principal
payment of such Debt or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by
(2) the sum of all such payments.
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Bankruptcy Law" means the Bankruptcy Code, or any
similar federal or state law for the relief of debtors.
"Benefited Party" shall have the meaning set forth in
Section 11.01.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such
Board.
"Borrowers" means collectively, the Company and the
Subsidiary Guarantors.
"Business Day" means each day which is not a Legal
Holiday.
"Capital Expenditures" means, for any period, all amounts
which would, in accordance with GAAP, be set forth as capital expenditures
(exclusive of any amount attributable to capitalized interest) on the
consolidated statement of cash flows or other similar statement of the Company
and its Subsidiaries for such period.
"Capital Lease Obligations" of a Person means any
obligation which is required to be classified and accounted for as a capital
lease on the face of a balance sheet of such Person prepared in accordance
with GAAP; the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with GAAP and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options or participations (or other
equivalents thereof) in such Person (however designated), including any
Preferred Stock, but excluding any debt securities convertible into or
exchangeable for such equity.
"Change of Control" means:
(1) Any "Person" (as that term is used in Sections 13(d)
and 14(d) of the Exchange Act), other than one or more of the Permitted
Holders, is or becomes the beneficial owner (as defined in Rules 13d-3 and
13d-5 under the Exchange Act except that a Person will be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the total voting
power of the Voting Stock of the Company; provided, however, that the
Permitted Holders "beneficially own," as defined above, directly or
indirectly, in the aggregate a lesser percentage of the total voting power of
the Voting Stock of the Company than such other Person and do not have the
right or ability by voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors of the Company. For the
purposes of this clause (1):
(a) a Person other than a Permitted Holder will be deemed
to beneficially own any Voting Stock of a corporation
(the "specified corporation") held by any other
corporation (the "parent corporation"), if such other
Person "beneficially owns" (as defined above), directly
or indirectly, more than 50% of the voting power of the
Voting Stock of such parent corporation and the Permitted
Holders "beneficially own" (as defined above), directly
or indirectly, in the aggregate a lesser percentage of
the voting power of the Voting Stock of such parent
corporation and do not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the Board of Directors of such
parent corporation; and
(b) the Permitted Holders will be deemed to beneficially
own any Voting Stock of a specified corporation held by
any parent corporation so long as the Permitted Holders
beneficially own (as so defined), directly or indirectly,
in the aggregate a majority of the voting power of the
Voting Stock of the parent corporation.
(2) During any period of two consecutive years,
individuals who at the beginning of such period constituted the Board of
Directors of the Company (together with any new directors whose election by
such Board of Directors or whose nomination for election by the shareholders
of the Company was approved by a majority of the directors of the Company then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved), cease
for any reason to constitute a majority of the Board of Directors of the
Company then in office.
(3) The merger or consolidation of the Company with or
into another Person or the merger of another Person (other than a Permitted
Holder) with or into the Company, or the sale or transfer in one or a series
of transactions of all or substantially all of the assets of the Company to
another Person (other than a Permitted Holder) and, in the case only of any
such merger or consolidation, the securities of the Company that are
outstanding immediately prior to such transaction and which represent 100% of
the aggregate voting power of the Voting Stock of the Company are changed into
or exchanged for cash, securities or property, unless pursuant to such
transaction such securities are changed into or exchanged for, in addition to
any other consideration, securities of the surviving corporation that
represent, immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving corporation.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Collateral Agent" means National City Bank, in its
capacity as collateral agent under the Security Agreement, or any successor
thereto.
"Commission" means the Securities and Exchange Commission
or any successor agency that administers the Exchange Act.
"Commodity Agreement" means any commodity future
contract, commodity option or other similar agreement or arrangement (limited
in amount to underlying exposure, and not for speculative purposes) entered
into by the Company or any Subsidiary that is designed to protect the Company
or a Subsidiary against fluctuations in the price of commodities used by the
Company or a Subsidiary as raw materials in the ordinary course of business.
"Company" means Sterling Chemicals, Inc., and any and all
successors thereto.
"Company Budget" means a budget of the Company prepared
in good faith by the management of the Company prior to an Interest Payment
Date showing in reasonable detail the estimated cash receipts and cash
disbursements of the Company and its Subsidiaries on a monthly basis for each
calendar month during the six months commencing on the first day of the
calendar month in which such Interest Payment Date occurs, which budget is
approved by the board of directors of the Company.
"Consolidated Net Worth" of any Person means the total of
the amounts shown on the balance sheet of such Person and its consolidated
subsidiaries, determined on a consolidated basis in accordance with GAAP, as
of the end of the most recent fiscal quarter of such Person ending at least 45
days, or such shorter period as is required by the Commission for filings of
quarterly reports on Form 10Q, prior to the taking of any action for the
purpose of which the determination is being made, as
(1) the par or stated value of all outstanding Capital
Stock of such Person, plus
(2) paid-in capital or capital surplus relating to such
Capital Stock, plus
(3) any retained earnings or earned surplus,
less:
(1) any accumulated deficit,
(2) any amounts attributable to Redeemable Stock, and
(3) any amounts attributable to Exchangeable Stock.
"Corporate Trust Office of the Trustee" shall be at the
address of the Trustee specified in Section 13.02 hereof or such other address
as to which the Trustee may give notice to the Company.
"Credit Agreement" means a revolving credit facility with
a commercial bank or other financial institution (as amended, supplemented and
restated or otherwise modified from time to time) among the Company and/or any
of its Subsidiaries as borrowers thereunder, and any other lenders party
thereto, pursuant to which the Company and/or its Subsidiaries, or any of
them, may borrow, repay and reborrow money and which borrowings and other
obligations arising with respect to such Credit Agreement and any other
documents executed and delivered in connection therewith may be secured by
Xxxxx on any assets or properties of the Company and its Subsidiaries other
than the Pledged Collateral.
"Credit Agreement Collateral" means any and all assets of
the Company and its Subsidiaries defined as "Collateral" in the Credit
Agreement Security Documents but shall in no event include any of the Pledged
Collateral.
"Credit Agreement Loan Documents" means the Credit
Agreement, each promissory note executed in connection therewith, the Credit
Agreement Security Documents, the Senior Debt Intercreditor Agreement, each
application of any letter(s) or credit issued under or guaranteed pursuant to
the Credit Agreement, each Interest Rate Agreement executed with any lender
party to the Credit Agreement and each other certificate, document or
instrument executed by the Company or any Subsidiary Guarantor in connection
with any of the foregoing, as the same may be amended, restated, supplemented
or otherwise modified from time to time.
"Credit Agreement Security Documents" means any security
or pledge agreement or mortgage or collateral assignment entered into by the
Company or its Subsidiaries as required under the Credit Agreement.
"Currency Agreement" means with respect to any Person,
any foreign exchange contract, currency swap agreement or other similar
agreement (limited in amount to underlying exposure, and not for speculative
purposes) to which such Person is a party or a beneficiary.
"Custodian" means the Trustee, as custodian with respect
to the Global Notes, or any successor entity thereto.
"Debt" of any Person means, without duplication:
(1) the principal of and premium (if any) in respect of
(a) indebtedness of such Person for money borrowed and
(b) indebtedness evidenced by notes, debentures, bonds or
other similar instruments the payment of which such
Person is responsible or liable,
(2) all Capital Lease Obligations of such Person and all
Attributable Debt in respect of Sale/Leaseback Transactions entered into by
such Person,
(3) all obligations of such Person Incurred as the
deferred purchase price of property, all conditional sale obligations of such
Person and all obligations of such Person under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business),
(4) all obligations of such Person for the reimbursement
of any obligor on any letter of credit, banker's acceptance or similar credit
transaction (other than obligations with respect to letters of credit securing
obligations (other than obligations described in (1) through (3) above)
entered into in the ordinary course of business of such Person to the extent
such letters of credit are not drawn upon or, if and to the extent drawn upon,
such drawing is reimbursed no later than the third Business Day following
receipt by such Person of a demand for reimbursement following payment on the
letter of credit),
(5) all Redeemable Stock of such Person and, with respect
to any Subsidiary of such Person, all Preferred Stock other than pay-in-kind
dividends in the form of Preferred Stock (the amount of Debt represented
thereby shall equal the greater of its liquidation preference and the
redemption, repayment or other repurchase obligations with respect thereto,
not excluding any accrued dividends),
(6) all Hedging Obligations of such Person,
(7) all obligations of the type referred to in clauses
(1) through (4) of other Persons and all dividends of other Persons the
payment of which, in either case, such Person is responsible or liable,
directly or indirectly, as obligor, guarantor or otherwise, including by means
of any Guarantee, and
(8) all obligations of the type referred to in clauses
(1) through (6) of other Persons secured by any Lien on any property or asset
of such Person (whether or not such obligation is assumed by such Person), the
amount of such obligation being deemed to be the lesser of the value of such
property or assets or the amount of the obligation so secured.
The amount of Debt of any Person at any date shall be the
outstanding balance on such date of all unconditional obligations as described
above and the maximum liability upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that the amount outstanding at any time of any Debt Incurred with
original issue discount is the face amount of such Debt less the remaining
unamortized portion of the original issue discount of such Debt at such time
as determined in conformity with GAAP.
"Deed of Trust and Security Agreement" means the Deed of
Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing,
dated as of the date of this
Indenture, between the Company, as trustor, and
the Trustee, as trustee.
"Default" means any event that is, or after notice or the
passage of time or both would be, an Event of Default.
"Definitive Note" means a certificated Note registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, substantially in the form of Exhibit A hereto except that such Note
shall not bear the Global Note Legend and shall not have the "Schedule of
Exchanges of Interests in the Global Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or
issued in whole or in part in global form, the Person specified in Section
2.03 hereof as the Depositary with respect to the Notes, and any and all
successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this
Indenture.
"Environmental Law" means any federal, state or local
statute, regulation, ordinance or rule which pertains to environmental
matters.
"Equity Interests" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any
and all shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or limited);
(4) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person; and
(5) any options, warrants and other rights to acquire or
purchase any of the foregoing.
"Excess Cash" means, with respect to any Interest Payment
Date, the sum of (A) the aggregate of all cash held by or on behalf of the
Company and the Subsidiaries on the date 30 days prior to such Interest
Payment Date (the "Determination Date"), (B) the net amount (which may be
negative) of cash receipts minus cash disbursements (not including cash
interest payments payable on the Notes) as set forth on the applicable Company
Budget and (C) the aggregate of all Temporary Cash Investments owned by or on
behalf of the Company and the Subsidiaries on such Determination Date.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Exchangeable Stock" means any Capital Stock which is
exchangeable or convertible into another security (other than Capital Stock of
the Company or any Wholly Owned Subsidiary which is neither Exchangeable Stock
nor Redeemable Stock).
"Excluded Subsidiaries" means Sterling Canada, Inc., a
Delaware corporation, Sterling Pulp Chemicals US, Inc., a Delaware
corporation, and Sterling Pulp Chemicals, Inc., a Georgia corporation.
"Event of Default" shall have the meaning set forth in
Section 6.01.
"Fibers Assets" means any and all assets and properties
owned by Sterling Fibers, Inc. and Sterling Chemicals International, Inc.,
including the acrylic fibers facility located in Santa Xxxx County, Florida.
"Fiscal Year" means the twelve-month period ending on
December 31; provided, however, that the Company can change the definition of
Fiscal Year at any time upon 90 days written notice to the Trustee.
"GAAP" means generally accepted accounting principles in
the United States of America as in effect as of the Issue Date, including
those set forth:
(1) in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants,
(2) in statements and pronouncements of the Financial
Accounting Standards Board,
(3) in such other statements by such other entity as have
been approved by a significant segment of the accounting profession, and
(4) in the rules and regulations of the Commission
governing the inclusion of financial statements (including pro forma financial
statements) in periodic reports required to be filed pursuant to Section 13 of
the Exchange Act, including opinions and pronouncements in staff accounting
bulletins and similar written statements from the accounting staff of the
Commission.
"Global Note" means a Note, substantially in the form of
Exhibit A hereto, issued in accordance with Section 2.01 and Section 2.06
hereof.
"Global Note Legend" means the legend set forth in
Section 2.06(d), which is required to be placed on all Global Notes issued
under this Indenture.
"Guarantee" means, with respect to any Person, any
obligation, contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person and any
obligation, direct or indirect, contingent or otherwise of such Person:
(1) to purchase or pay (or advance or supply funds for
the purchase or payment of) any Debt or other obligation of any other Person
(whether arising by virtue of partnership arrangements, or by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay
or to maintain financial statement conditions or otherwise), or
(2) entered into for purposes of assuring in any other
manner the obligee of any Debt or other obligation of any other Person of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements
for collection or deposits in the ordinary course of business or guarantees of
obligations of a Subsidiary in the ordinary course of business if such
obligations do not constitute Debt of such Subsidiary . The term "Guarantee"
used as a verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations
of such Person pursuant to any Interest Rate Agreement, Currency Agreement or
Commodity Agreement (limited in amount to underlying exposure, and not for
speculative purposes).
"Holder" means a Person in whose name a Note is
registered on the registrar's books.
"Incur" means issue, assume, Guarantee, create, incur,
suffer to exist or otherwise become liable for; provided, however, that any
Debt or Capital Stock of a Person existing at the time such Person becomes a
Subsidiary (whether by merger, consolidation, acquisition or otherwise) shall
be deemed to be Incurred by such Subsidiary at the time it becomes a
Subsidiary. The term "Incurrence" when used as a noun shall have a correlative
meaning. The accretion of principal of a non-interest bearing or other
discount security shall be deemed the Incurrence of Debt.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Indirect Participant" means a Person who holds a
beneficial interest in the Global Note through a Participant.
"Interest Payment Date" shall have the meaning set forth
in paragraph 1 of the Notes.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement or other financial agreement or
arrangement (limited in amount to underlying exposure, and not for speculative
purposes) designed to protect the Company or any Subsidiary against
fluctuations in interest rates.
"Investment" means, with respect to any Person, any loan
or advance to, any acquisition of Capital Stock, equity interest, obligation
or other security of, or capital contribution or other investment in, or any
other credit extension to (including by way of Guarantee of any Debt of), any
other Person.
"Issue Date" means December 19, 2002, the date on which
the Notes (other than Additional Notes) are originally issued.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of
New York, in the city of the
Corporate Trust Office of the Trustee or at a place of payment are authorized
by law, regulation or executive order to remain closed. If a payment date is a
Legal Holiday, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue on such payment for
the intervening period.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or
other title retention agreement or lease in the nature thereof).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Available Cash" from an Asset Disposition or a Sale
of the Texas City Facilities means cash payments received therefrom
(including, to the extent permitted, any cash payments received by way of
deferred payment of principal pursuant to a promissory note or installment
receivable of any Return of Capital or otherwise, but only as and when
received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Debt or other obligations relating to
such properties or assets that are the subject of such Asset Disposition or
received in any other noncash form), in each case net of:
(1) all legal, title and recording expenses, commissions
and other fees and expenses incurred, and all Federal, state, provincial,
foreign and local taxes required to be accrued as a liability under GAAP, as a
consequence of such transaction,
(2) all payments made on any Debt to the extent secured
by the assets subject to such transaction, to the extent such payments are
required in accordance with the terms of any such Debt or Lien upon or other
security agreement of any kind with respect to such assets (including but not
limited to Debt evidenced by any Credit Agreement Loan Document), or which
must by its terms, or in order to obtain a necessary consent to such
transaction, or by applicable law be repaid out of the proceeds from such
transaction,
(3) all distributions and other payments required to be
made to any minority interest holders in Subsidiaries or joint ventures as a
result of such transaction, and
(4) the deduction of appropriate amounts provided by the
sellers as a reserve, in accordance with GAAP, against any liabilities
associated with the property or other assets disposed in such transaction and
retained by the Company or any Subsidiary after such transaction.
"Net Cash Proceeds" means, with respect to any issuance
or sale of Capital Stock, the cash proceeds of such issuance of sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultants' and other fees, all
payments made on any Debt to the extent secured by the assets subject to such
transaction, to the extent such payments are required in accordance with the
terms of any such Debt or Lien upon or other security agreement of any kind
with respect to such assets (including but not limited to Debt evidenced by
any Credit Agreement Loan Document), and other costs and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Non-Convertible Capital Stock" means, with respect to
any corporation, any non-convertible Capital Stock of such corporation and any
Capital Stock of such corporation convertible solely into non-convertible
Capital Stock of such corporation; provided, however, that Non-Convertible
Capital Stock shall not include any Redeemable Stock or Exchangeable Stock.
"Non-U.S. Subsidiary" means a Subsidiary that is
incorporated in a jurisdiction other than the United States or a State thereof
or the District of Columbia.
"Notes" has the meaning assigned to it in the preamble to
this Indenture and shall include Additional Notes, if any.
"Obligations" has the meaning set forth in the Security
Agreement.
"Officer" means, with respect to any Person, the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate that meets
the requirements of Section 13.05 hereof signed on behalf of the Company by
two Officers of the Company, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of the Company.
"Opinion of Counsel" means an opinion that meets the
requirements of Section 13.05 hereof from legal counsel, who may be an
employee of or counsel to the Company, any Subsidiary of the Company or the
Trustee.
"Participant" means with respect to the Depositary, a
Person who has an account with the Depositary.
"Patent Security Agreement" means the Patent Security
Agreement, substantially in the form of Exhibit A to the Security Agreement.
"Paying Agent" shall have the meaning set forth in
Section 2.03.
"Permitted Debt" means:
(1) Debt represented by any of the Credit Agreement Loan
Documents and the related Guarantees by any Subsidiary;
(2) Debt existing on the Issue Date (other than Debt
described in Clause (1)) as listed on Schedule I;
(3) Refinancing Debt in respect of Permitted Debt;
(4) Hedging Obligations, provided, however, that with
respect to Interest Rate Agreements and Currency Agreements if such Currency
Agreements relate to Debt, only to the extent directly related to Debt
permitted to be incurred by the Company pursuant to this Indenture; and
(5) Debt in an amount that does not exceed $10 million in
the aggregate at any time outstanding represented by premium financing or
similar deferred payment obligations incurred with respect to insurance
policies purchased in the ordinary course of business and consistent with past
practice; and
(6) unsecured Debt incurred in the ordinary course of
business and consistent with past practice which is not in any of the
categories of Permitted Debt described above in clauses (1) through (5),
inclusive, and which does not in the aggregate at any time outstanding exceed
$1 million in principal amount.
"Permitted Holders" means:
(1) Resurgence Asset Management, L.L.C. or any controlled
Affiliate thereof;
(2) any Permitted Transferee with respect to any Person
covered by the preceding clause (1); or
(3) any savings or investment plan or employee stock
ownership plan sponsored by the Company.
"Permitted Investment" means an Investment by the Company
or any Subsidiary in:
(1) a Wholly Owned Subsidiary or a Person that will, upon
the making of such Investment, become a Wholly Owned Subsidiary; provided,
however, that such Wholly Owned Subsidiary's or Person's primary business is
reasonably related to the business of the Company and its Subsidiaries.
(2) Temporary Cash Investments;
(3) receivables owing to the Company or any Subsidiary if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms;
(4) stock, obligations or securities received in
settlement of debts created in the ordinary course of business and owing to
the Company or any Subsidiary or in satisfaction of judgments;
(5) any Person to the extent such Investment represents
the noncash portion of the consideration received for (A) an Asset Disposition
as permitted pursuant to Section 4.11 or (B) a Sale of the Texas City
Facilities as permitted pursuant to Section 4.16;
(6) Investments by the Company or a Subsidiary in a
Person to the extent the consideration for such Investment consists of shares
of Capital Stock of the Company (other than Redeemable Stock and Capital Stock
convertible into or exchangeable for Redeemable Stock of the Company);
(7) payroll, travel and similar advances to cover matters
that are expected at the time of such advances ultimately to be treated as
expenses for accounting purposes and that are made in the ordinary course of
business;
(8) loans or advances to employees or to a trust for the
benefit of such employees that are made in the ordinary course of business of
the Company or such Subsidiary; and
(9) another Person if as a result of such Investment such
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Subsidiary Guarantor;
provided, however, that such Person's primary business is reasonably related
to the business of the Company and its Subsidiaries.
"Permitted Liens" means:
(1) Liens (other than Liens securing the Credit
Agreement) existing on the Issue Date and listed on Schedule II hereto.
(2) Liens in favor of the Collateral Agent under the
Security Documents for the benefit of the Holders;
(3) Liens on assets securing the Credit Agreement
Collateral;
(4) Liens for taxes, assessments or other governmental
charges or levies not yet due or that are being contested in good faith by
appropriate action or proceedings promptly instituted and diligently pursued
and with respect to which adequate reserves in conformity with GAAP are being
maintained;
(5) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, repairmen, workmen, crews, maritime
liens and other Liens imposed by law created in the ordinary course of
business for amounts that are not past due or that are being contested in good
faith by appropriate action or proceedings and with respect to which adequate
reserves in accordance with GAAP are being maintained;
(6) Liens incurred for deposits or pledges made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance and other types of social security, old age or other
similar obligations, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money) incurred in the ordinary
course of business;
(7) minor irregularities in title, boundaries, or other
survey defects, easements, rights-of-way, restrictions, servitudes, permits,
reservations, exceptions, zoning regulations, conditions, covenants, mineral
or royalty rights or reservations or oil, gas and mineral leases and rights of
others in any property of the Company or any Subsidiary for streets, roads,
bridges, pipes, pipe lines, railroads, electric transmission and distribution
lines, telegraph and telephone lines, the removal of oil, gas or other
minerals or other similar purposes, flood control, water rights, rights of
others with respect to navigable waters, sewage and drainage rights and other
similar charges or encumbrances existing as of the Issue Date (or granted by
the Company or any Subsidiary in the ordinary course of business) that do not,
in the aggregate, materially impair the value of the property of the Company
or any Subsidiary or the occupation, use and enjoyment by the Company or any
of its Subsidiaries of any of their respective properties in the normal course
of business;
(8) Liens securing an obligation of a third party neither
created, assumed nor Guaranteed by the Company or any Subsidiary upon lands
over which easements or similar rights are acquired by the Company or any
Subsidiary in the ordinary course of business of the Company or any
Subsidiary;
(9) terminable or short term leases or permits for
occupancy, which leases or permits expressly grant to the Company or any
Subsidiary the right to terminate them at any time on not more than six
months' notice and which occupancy does not interfere with the operation of
the business of the Company or any Subsidiary;
(10) any Lien or privilege arising solely by operation of
law and vested in any lessor, licensor or permittor on personal property
located on premises leased by the Company or any Subsidiary, for rent to
become due or for other obligations or acts to be performed, the payment of
which rent or the performance of which other obligations or acts is required
under leases, subleases, licenses or permits;
(11) Liens or privileges of any employee of the Company
or any Subsidiary for salary or wages earned but not yet payable;
(12) any obligations or duties affecting any of the
property of the Company or its Subsidiaries to any municipality or public
authority with respect to any franchise, grant, license or permit that do not
impair the use of such property for the purposes for which it is held;
(13) Liens on property that is the subject of capital
projects between the Company and a third party that has a production,
operating or similar agreement with the Company; provided, however, that such
Liens are expressly limited to the assets directly financed by such third
party;
(14) Liens (other than Liens securing the Credit
Agreement) upon property or assets acquired by the Company after the Issue
Date; provided, however, that such Liens do not extend to any property or
assets other than such acquired property or assets and such Liens do not
attach to any of the assets constituting the Pledged Collateral;
(15) Liens resulting from operation of law with respect
to any judgments, awards or orders to the extent that such judgments, awards
or orders do not cause or constitute an Event of Default;
(16) Liens on any property in favor of domestic or
foreign governmental bodies to secure partial, progress, advance or other
payments pursuant to any contract or statute, not yet due and payable;
(17) Liens (other than Liens securing the Credit
Agreement) securing Debt incurred to finance the construction, purchase or
lease of, or repairs, improvements or additions to, property of such Person
used in the business of the Company, to the extent such Debt is otherwise
permitted by this Indenture;
(18) Liens with respect to the so called "greenbelt" or
"buffer zone" properties, for as long as those properties are used solely for
"greenbelt" or buffer zone" purposes;
(19) leases and ground leases of underutilized or vacant
properties of the Company or any Subsidiary to third parties with which the
Company has a production, co-production, co-generation, operating or other
arrangement or to third party providers of energy or raw materials in the
ordinary course of business of the Company or a Subsidiary, provided such
leases do not materially interfere with the operation of the business of the
Company or any Subsidiary or materially diminish the value of the PP&E;
(20) easements, rights-of-way, restrictions and other
similar charges or encumbrances granted to others, in each case incidental to,
and not interfering with, the ordinary conduct of the business of the Company
or any of its Subsidiaries, provided that such Liens are not violated by the
existing PP&E and do not, in the aggregate, materially diminish the value of
the PP&E;
(21) the burdens of any law or governmental regulation or
permit requiring the Company to maintain certain facilities or perform certain
acts as a condition of its occupancy of or interference with any public lands
or any river or stream or navigable waters;
(22) extensions, renewals, modifications or replacements
of any Lien referred to in clauses (1) through (21) of this definition,
provided that such Lien is otherwise permitted by the terms hereof and, with
respect to Liens securing Debt, no extension or renewal Lien shall (A) secure
more than the amount of the Debt or other obligations secured by the Lien
being so extended or renewed or (B) extend to any property or assets not
subject to the Lien being so extended or renewed; and
(23) Liens incurred in the ordinary course of business of
the Company and its Subsidiaries that do not secure Debt and which have a
value that in the aggregate does not exceed $5.0 million at any one time
outstanding.
"Permitted Transferee" means with respect to any Person:
(1) in the case of an entity, any Affiliate of such
Person; and
(2) in the case of an individual, any person related by
lineal or collateral consanguinity to such individual or to the spouse of such
individual (adopted persons shall be considered the natural born child of
their adoptive parents).
Lineal consanguinity is that relationship that exists between persons of whom
one is descended (or ascended) in a direct line from the other, as between
son, father, grandfather and great-grandfather. Collateral consanguinity is
that relationship that exists between persons who have the same ancestors, but
who do not descend (or ascend) from the other, as between uncle and nephew, or
cousin and cousin, in each case to whom such Xxxxxx has transferred common
stock of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Pledged Collateral" means any assets of the Company or
any Subsidiary Guarantor defined as "Trust Premises", "Collateral" and "Patent
Collateral" in the Security Documents.
"Preferred Stock" as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PP&E" means the real property, production facilities and
certain related general intangibles and other assets currently owned by the
Company and its Subsidiaries, a first lien priority lien on which will secure
the Notes and the Subsidiary Guarantees, as provided in the Security
Documents.
"Redeemable Stock" means any Capital Stock that by its
terms or otherwise is required to be redeemed on or prior to the Stated
Maturity of the Notes or is redeemable at the option of the Holder thereof
without regard to the occurrence of any contingency at any time on or prior to
the Stated Maturity of the Notes.
"Registrar" shall have the meaning set forth in Section
2.03.
"Refinance" means, in respect of any Debt, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue
other Debt in exchange or replacement for, such Debt. "Refinanced" and
"Refinancing" shall have correlative meanings.
"Refinancing Debt" means Debt that Refinances any Debt of
the Company or any Subsidiary existing on the Issue Date or Incurred in
compliance with this Indenture including Debt that Refinances Refinancing
Debt; provided, however that:
(1) such Refinancing Debt has a Stated Maturity no
earlier than the Stated Maturity of the Debt being Refinanced,
(2) such Refinancing Debt has an Average Life at the time
such Refinancing Debt is Incurred that is equal to or greater than the Average
Life of the Debt being Refinanced,
(3) such Refinancing Debt has an aggregate principal
amount (or if incurred with original issue discount, an aggregate issue price)
that is equal to or less than the aggregate principal amount (or if Incurred
with original issue discount, the aggregate accreted value) then outstanding
or committed (plus fees and expenses, including any premium and defeasance
costs) under the Debt being Refinanced, and
(4) with respect to any Refinancing Debt, such
Refinancing Debt shall rank no more senior, and shall be at least as
subordinated, in right of payment to the Notes as the Debt being so
Refinanced;
provided, further, however, that Refinancing Debt shall not include Debt of a
Subsidiary (other than a Wholly Owned Subsidiary which is also a Subsidiary
Guarantor) that Refinances Debt of the Company.
"Required Environmental Capital Expenditure" means a
Capital Expenditure made by the Company or a Subsidiary to comply with an
Environmental Law the noncompliance of which is reasonably likely to (a) have
a material adverse effect on the Company and its Subsidiaries or (b)
materially impair the ability of the Company and its Subsidiaries to operate
its business in any material respect in the jurisdiction in which such
compliance is required.
"Responsible Officer" means, (a) when used with respect
to the Trustee, any officer within the Corporate Trust Administration of the
Trustee (or any successor group of the Trustee) or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject, and
(b) when used with respect to the Company, any Officer of the Company.
"Restricted Payment" shall have the meaning set forth in
Section 4.08.
"Return of Capital" means, with respect to any Equity
Interest, any sums paid on or in respect of such Equity Interest (1) in
redemption of, or in exchange for, such Equity Interest or (2) in connection
with a partial or total liquidation or dissolution of the issuer of such
Equity Interest.
"Sale/Leaseback Transaction" means an arrangement
relating to property now owned or hereafter acquired whereby the Company or a
Subsidiary transfers such property to a Person (other than the Company or a
Wholly Owned Subsidiary which is also a Subsidiary Guarantor) and the Company
or Subsidiary leases it from such Person.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security Agreement" means the Security Agreement, dated
the date of this Indenture, among the Borrowers and National City Bank, as
Collateral Agent and Indenture Trustee, pursuant to which the Borrowers have
granted to the holders of the Notes, a first priority perfected security
interest in certain of the Pledged Collateral.
"Security Documents" means, collectively, all of the
agreements, instruments, documents, pledges or filings executed in connection
with granting, or that otherwise evidence, the Lien of the Collateral Agent in
the Pledged Collateral, including, the Security Agreement, the Deed of Trust
and Security Agreement, the Subsidiary Guarantees, the Patent Security
Agreement and the Senior Debt Intercreditor Agreement, as any of the foregoing
agreements may be amended, modified or supplemented from time to time.
"Senior Debt Intercreditor Agreement" means the
Intercreditor Agreement, dated December 19, 2002, between The CIT
Group/Business Credit, Inc., as administrative agent for the lenders party to
the Credit Agreement, and the Trustee, for the benefit of the Holders, as such
agreement may be amended, modified or supplemented from time to time.
"S&P" means Standard & Poor's Ratings Group.
"Stated Maturity" means, with respect to any security,
the date specified in such security as the fixed date on which the principal
of such security or Debt is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the Holder thereof upon the
happening of any contingency unless such contingency has occurred).
"Sterling Chemicals Marketing, Inc." means Sterling
Chemicals Marketing, Inc., a Barbados corporation and a Wholly Owned
Subsidiary of the Company.
"Subordinated Obligation" means any Debt of the Company
(whether outstanding on the Issue Date or hereafter Incurred) which is
subordinate or junior in right of payment to the Notes.
"Subsidiary" means any corporation, association,
partnership or other business entity of which than more 50% of the total
voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees
thereof at the time is owned or controlled, directly or indirectly, by:
(1) the Company,
(2) the Company and one or more Subsidiaries, or
(3) one or more Subsidiaries
;provided, however, that the Excluded Subsidiaries shall not be deemed to be
Subsidiaries until the date of any breach of a covenant contained in Section
4.21.
"Subsidiary Guarantees" means the guarantees of the Notes
by the Subsidiary Guarantors.
"Subsidiary Guarantors" means (1) Sterling Chemicals
Energy, Inc., (2) any other entity that at any time after the Issue Date
becomes a Subsidiary of the Company (other than Sterling Chemicals Marketing,
Inc. but only for so long as it is a Non-U.S. Subsidiary), and (3) all of the
Excluded Subsidiaries if there is any breach of a covenant contained in
Section 4.21.
"Tangible Property" means all land, buildings, machinery
and equipment.
"Temporary Cash Investments" means any of the following:
(1) any investment in direct obligations of the United
States of America or any agency thereof or obligations Guaranteed by the
United States of America or any agency thereof,
(2) investments in time deposit accounts, certificates of
deposit and money market deposits maturing within 270 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United States of America, any state thereof or any foreign
country recognized by the United States, and which bank or trust company has
capital, surplus and undivided profits aggregating in excess of $50.0 million
(or the foreign currency equivalent thereof) and has outstanding debt which is
rated "A" (or such similar equivalent rating) or higher by at least one
nationally recognized statistical rating organization (as defined in Rule 436
under the Securities Act) or any money market fund sponsored by a registered
broker dealer or mutual fund distributor,
(3) repurchase obligations with a term of not more than
30 days for underlying securities of the types described in clause (1) above
entered into with a bank meeting the qualifications described in clause (2)
above,
(4) investments in commercial paper, maturing not more
than 180 days after the date of acquisition, issued by a corporation (other
than an Affiliate of the Company) organized and in existence under the laws of
the United States of America or any foreign country recognized by the United
States of America with a rating at the time as of which any Investment therein
is made of "P-1" (or higher) according to Xxxxx'x or "A-1" (or higher)
according to S&P,
(5) investments in securities with maturities of six
months or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least "A" by
S&P or "A" by Xxxxx'x, and
(6) participations (for a tenor of not more than 90 days)
in loans to Persons having short-term credit ratings of at least "A-1" and
"P-1" by S&P and Xxxxx'x, respectively.
"Texas City Facilities" means the petrochemicals
production facilities that are located at Texas City, Texas.
"Texas City Facilities Subsidiary" means the Company and
any other Affiliate that may hereafter own the Texas City Facilities.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date on which this Indenture is
qualified under the TIA.
"Trustee" means National City Bank, as trustee hereunder,
until a successor replaces it in accordance with the applicable provisions of
this Indenture and thereafter means the successor serving hereunder.
"U.S. Government Obligations" means direct obligations
(or certificates representing an ownership interest in such obligations) of
the United States of America (including any agency or instrumentality thereof)
for the payment of which the full faith and credit of the United States of
America is pledged and which are not callable at the issuer's option.
"Voting Stock" of a corporation means all classes of
Capital Stock of such corporation then outstanding and normally entitled to
vote in the election of directors.
"Wholly Owned Subsidiary" means a Subsidiary all of the
Capital Stock of which (other than directors' qualifying shares) is owned by
the Company and/or another Wholly Owned Subsidiary.
Section 1.02. Other Definitions.
-----------------
Defined in
Term Section
---- -------
"Affiliate Transaction"................................................................. 4.12
"Asset Sale Offer"...................................................................... 3.09
"Change of Control Offer"............................................................... 4.15
"Change of Control Payment"............................................................. 4.15
"Change of Control Payment Date"........................................................ 4.15
"Covenant Defeasance"................................................................... 8.03
"DTC"................................................................................... 2.03
"ESOP".................................................................................. 4.08
"Event of Default"...................................................................... 6.01
"Leases"................................................................................ 10.06
"Legal Defeasance"...................................................................... 8.02
"Offer Amount".......................................................................... 3.09
"Offer Period".......................................................................... 3.09
"Paying Agent".......................................................................... 2.03
"Payment Default"....................................................................... 6.01
"Permitted Debt"........................................................................ 4.10
"Purchase Date"......................................................................... 3.09
"Registrar"............................................................................. 2.03
"Restricted Payments"................................................................... 4.08
"Sale of the Texas City Facilities"..................................................... 4.16
"Successor Company"................................................................. 5.01
"Tax Refund".............................................................................. 4.21
Section 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA,
the provision is incorporated by reference in and made a part of this
Indenture.
The following TIA terms used in this Indenture have the
following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Notes and the Subsidiary Guarantees
means the Company and the Subsidiary Guarantors, respectively, and any
successor obligor upon the Notes and the Subsidiary Guarantees, respectively.
All other terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by
Commission rule under the TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the
plural include the singular;
(e) provisions apply to successive events and
transactions; and
(f) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the Commission from time to time; and
(g) the word "including" means including without
limitation and the terms "include" or "includes" shall have correlative
meanings.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
---------------
(a) General. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby. However, to the extent any provision of any Note
conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
(b) Form of Notes. Notes issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Note Legend thereon and the "Schedule of Exchanges of Interests in the Global
Note" attached thereto). Notes issued in definitive form shall be
substantially in the form of Exhibit A attached hereto (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time
to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, transfers and redemptions and
the issuance of Additional Notes. Any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee in the records of the Trustee or the Custodian, at the direction of
the Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof or, in the case of the issuance of Additional
Notes, in accordance with an Authentication Order delivered by the Company.
Section 2.02. Execution and Authentication.
----------------------------
Two Officers shall sign the Notes for the Company by
manual or facsimile signature. The Company's seal shall be reproduced on the
Notes and may be in facsimile form.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the Note shall
nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers (an "Authentication Order"), authenticate Notes for
original issue up to (i) the aggregate principal amount stated in paragraph 4
of the Notes and (ii) the aggregate principal amount of any Additional Notes
to be issued in lieu of payment of interest on the Notes in cash upon delivery
of an Authentication Order as specified in the first paragraph of Section 4.01
hereof. In the event of the issuance of any Additional Notes in respect of
payment of interest on the Global Note, the Trustee shall notify the
Depositary of an increase in the amount of the Global Note and record the
amount of any increase in the aggregate principal amount of the Global Note to
reflect the issuance of any such Additional Notes. The aggregate principal
amount of Notes outstanding at any time may not exceed the aggregate of the
amounts of Notes originally issued pursuant to clauses (i) or (ii) of the
first sentence of this paragraph except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with
Holders or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where Notes may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Notes (including
Additional Notes) and of their transfer and exchange. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or maintain another entity
as Registrar or Paying Agent, the Trustee shall act as such. The Company or
any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Custodian with respect to the Global
Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will hold in trust for
the benefit of Holders or the Trustee all money held by the Paying Agent for
the payment of principal, premium, if any, or interest on the Notes, and will
notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to
pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary)
shall have no further liability for the money. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
Section 2.05. Lists.
-----
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least seven Business Days before each interest payment date and at such
other times as the Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses
of the Holders of Notes and the Company shall otherwise comply with TIA
Section 312(a).
Section 2.06. Transfer and Exchange.
---------------------
(a) Transfer and Exchange of Global Notes. A Global Note
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Company for Definitive Notes if (i) the
Depositary notifies the Company that it is unwilling or unable to continue to
act as Depositary and a successor Depositary is not appointed by the Company
within 120 days after the date of such notice from the Depositary or that the
Depositary is no longer a clearing agency registered under the Exchange Act,
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) there shall have
occurred and be continuing a Default or an Event of Default with respect to
the Notes. Upon the occurrence of any of the preceding events in (i), (ii) or
(iii) above, Definitive Notes shall be issued in such names as the Depositary
shall instruct the Trustee in accordance with its customary procedures. In
addition, beneficial interests in a Global Note may be exchanged for
Definitive Notes upon prior written notice given to the Trustee by or on
behalf of the Depositary in accordance with this Indenture. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections
2.06 and 2.07 hereof. Except as otherwise provided in this Section 2.06(a),
every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10 hereof, shall be authenticated and delivered in the form of, and
shall be, a Global Note and owners of interests in Global Notes will not have
Notes registered in their names, will not receive physical delivery of
Definitive Notes and will not be considered the registered owners or Holders
thereof under this Indenture for any purpose. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and
exchanged as provided in Section 2.06.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and Applicable Procedures.
(i) Beneficial Interests in the Global Note for a Beneficial Interest
in the Global Note. Beneficial interests the Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to
effect the transfers described in this Section 2.06(b)(i).
(ii) Beneficial Interests in Global Notes to Definitive Notes.
Subject to Section 2.06(a) hereof, if any holder of a beneficial
interest in an a Global Note proposes to exchange such beneficial
interest for a Definitive Note or to transfer such beneficial
interest to a Person who takes delivery thereof in the form of a
Definitive Note, then, upon satisfaction of the conditions set forth
in Section 2.06(c) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 2.06(e) hereof, and the Company shall
execute and the Trustee shall authenticate and deliver to the Person
designated in the instructions a Definitive Note in the appropriate
principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(b)(ii) shall be
registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall
instruct the Registrar through instructions from the Depositary and
the Participant or Indirect Participant. The Trustee shall deliver
such Definitive Notes to the Persons in whose names such Notes are so
registered.
(iii) Definitive Notes to Beneficial Interests in Global Notes. A
Holder of a Definitive Note may exchange such Note for a beneficial
interest in a Global Note or transfer such Definitive Notes to a
Person who takes delivery thereof in the form of a beneficial
interest in a Global Note at any time. Upon receipt of a request for
such an exchange or transfer, the Trustee shall cancel the applicable
Definitive Note and increase or cause to be increased the aggregate
principal amount of the Global Note.
(c) Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.06(c), the Registrar
shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar
duly executed by such Holder or by its attorney, duly authorized in writing.
(d) Legend. The following legends shall appear on the
face of all Global Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(e) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or canceled in whole and not in part, each such Global Note shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person for
Definitive Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction.
(f) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 3.09, 4.11,
4.15, 4.16 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of
or exchange any Note selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the
opening of business 15 days before the day of any selection of Notes
for redemption under Section 3.02 hereof and ending at the close of
business on the day of selection, (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in part or
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(vi) Prior to due presentment for the registration of a transfer of
any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of receiving payment of principal of and
interest on such Notes and for all other purposes, and none of the
Trustee, any Agent, or the Company shall be affected by notice to the
contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive
Notes in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications and certificates required to be submitted
to the Registrar pursuant to this Section 2.06 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.07. Replacement Notes.
-----------------
If any mutilated Note is surrendered to the Trustee or
the Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the
Trustee, upon receipt of an Authentication Order, shall authenticate a
replacement Note if the Trustee's requirements are met. If reasonably required
by the Trustee or the Company, an indemnity bond must be supplied by the
Holder that is sufficient in the reasonable judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and any authenticating
agent from any loss that any of them may suffer if a Note is replaced. The
Company or the Trustee may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
-----------------
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof and those
described in this Section 2.08 as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it
ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary
or an Affiliate of any thereof) holds, on a redemption date or maturity date,
money sufficient to pay Notes payable on that date, then on and after that
date such Notes shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.09. Treasury Notes.
--------------
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by the Company, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Company, shall be considered as though not outstanding, except that for
the purposes of determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Notes that the Trustee knows
are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
---------------
Until certificates representing Notes are ready for
delivery, the Company may prepare and the Trustee, upon receipt of an
Authentication Order, shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form of certificated Notes but may have
variations that the Company considers appropriate for temporary Notes and as
shall be reasonably acceptable to the Trustee. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
------------
The Company at any time may deliver Notes to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Notes surrendered to them for registration of transfer, exchange, payment,
repayment or cancellation. The Trustee and no one else shall cancel all Notes
surrendered for registration of transfer, exchange, payment, replacement or
cancellation and shall destroy canceled Notes (subject to the record retention
requirement of the Exchange Act). Certification of the destruction of all
canceled Notes shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
Section 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the
Notes, it shall pay the defaulted interest in any lawful manner plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Holders on a subsequent special record date, in each case at the
applicable rate provided in the Notes and in Section 4.01 hereof. The Company
shall notify the Trustee in writing of the amount of defaulted interest
proposed to be paid on each Note and the date of the proposed payment. The
Company shall fix or cause to be fixed each such special record date and
payment date, provided that no such special record date shall be less than 10
days prior to the related payment date for such defaulted interest. At least
15 days before the special record date, the Company (or, upon the written
request of the Company, the Trustee in the name and at the expense of the
Company) shall mail or cause to be mailed to Holders a notice that states the
special record date, the related payment date and the amount of such interest
to be paid.
Section 2.13. Exemption From Federal and
State Law Securities Registration Requirements.
----------------------------------------------
The Notes are issued pursuant to Section 1145 of the
Bankruptcy Code. The Notes may be sold by a Holder who is not an "underwriter"
as that term is used in Section 1145(b) of the Code publicly (whether through
a broker or not) or in privately negotiated transactions, in each case,
without registration under federal or state law.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it shall furnish to the
Trustee, at least 30 days but not more than 60 days before a redemption date,
an Officers' Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the redemption date, (iii)
the principal amount of Notes to be redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
---------------------------------
If less than all of the Notes are to be redeemed, or
purchased in an offer to purchase at any time, the Trustee shall select the
Notes to be redeemed or purchased among the Holders of the Notes in compliance
with the requirements of the principal national securities exchange, if any,
on which the Notes are listed or, if the Notes are not so listed, on a pro
rata basis, by lot or in accordance with any other method the Trustee
considers fair and appropriate. In the event of partial redemption by lot, the
particular Notes to be redeemed shall be selected, unless otherwise provided
herein, not less than 30 nor more than 60 days prior to the redemption date by
the Trustee from the outstanding Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing
of the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed. Notes and
portions of Notes selected for redemption shall be in amounts of $1,000 or
whole multiples of $1,000; except that if all of the Notes of a Holder are to
be redeemed, the entire outstanding amount of Notes held by such Holder, even
if not a multiple of $1,000, shall be redeemed. Except as provided in the
preceding sentence, provisions of this Indenture that apply to Notes called
for redemption also apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
--------------------
Subject to the provisions of Section 3.09 hereof, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail or cause to be mailed, by first class mail, a notice of redemption
to each Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
redemption date upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued upon cancellation of
the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemption ceases to accrue
on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense; provided,
however, that the Company shall have delivered to the Trustee, at least 45
days prior to the redemption date, an Officers' Certificate requesting that
the Trustee give such notice and setting forth the information to be stated in
such notice as provided in the preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become irrevocably due and
payable on the redemption date at the redemption price. A notice of redemption
may not be conditional. Failure to give notice to a Holder of a Note or any
defect in any notice shall not affect the validity of any notice to any other
Holder of a Note.
Section 3.05. Deposit of Redemption Price.
---------------------------
At least one Business Day prior to the redemption date,
the Company shall deposit with the Trustee or with the Paying Agent (or if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in
trust) money sufficient to pay the redemption price of and accrued interest on
all Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date, interest shall cease to
accrue on the Notes or the portions of Notes called for redemption. If a Note
is redeemed on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest shall be paid to
the Person in whose name such Note was registered at the close of business on
such record date. If any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the Company to comply with
the preceding paragraph, interest shall be paid on the unpaid principal, from
the redemption date until such principal is paid, and to the extent lawful on
any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part.
----------------------
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Note equal in
principal amount to the unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
-------------------
(a) The Company shall have the option to redeem the
Notes, in whole or in part, at any time on not less than 30 days' prior notice
at a redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest thereon to the redemption date.
(b) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
Section 3.08. Mandatory Redemption.
--------------------
The Company shall not be required to make mandatory
redemption, sinking fund payments or repurchases with respect to the Notes,
except as specified in Sections 4.11, 4.15 and 4.16 hereof.
Section 3.09. Offer to Purchase by Application of Net Available Cash.
------------------------------------------------------
In the event that, pursuant to Section 4.11 hereof, the
Company shall be required to commence an offer to all Holders to purchase
Notes (an "Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than 5 Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the principal amount of Notes
required to be purchased pursuant to Section 4.11 hereof (the "Offer Amount")
or, if less than the Offer Amount has been tendered, all Notes tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
If the Purchase Date is on or after an interest record
date and on or before the related interest payment date, any accrued and
unpaid interest shall be paid to the Person in whose name a Note is registered
at the close of business on such record date, and no additional interest shall
be payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company
shall send, by first class mail, a notice to the Trustee, with sufficient
copies for delivery by the Trustee to each Holder. The Trustee shall promptly
send the notice to each of the Holders by first class mail. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset
Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to
this Section 3.09 and Section 4.11 hereof and the length of time the Asset
Sale Offer shall remain open;
(b) the Offer Amount, the purchase price and the Purchase
Date;
(c) that any Note not tendered or accepted for payment
shall continue to accrue interest;
(d) that, unless the Company defaults in making such
payment, any Note accepted for payment pursuant to the Asset Sale Offer shall
cease to accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased
pursuant to an Asset Sale Offer may elect to have Notes purchased in integral
multiples of $1,000 only;
(f) that Holders electing to have a Note purchased
pursuant to any Asset Sale Offer shall be required to surrender the Note, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, or transfer by book-entry transfer, to the Company, the
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least 3 days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their
election if the Company, the Depositary or the Paying Agent, as the case may
be, receives, not later than the expiration of the Offer Period, a telegram,
telex, facsimile transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for purchase and a
statement that such Xxxxxx is withdrawing his election to have such Note
purchased;
(h) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the Offer Amount, the Company shall select the
Notes to be purchased on a pro rata basis (with such adjustments as may be
deemed appropriate by the Company so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part
shall be issued new Notes equal in principal amount to the unpurchased portion
of the Notes surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Offer Amount of Notes or portions thereof tendered pursuant to
the Asset Sale Offer, or if less than the Offer Amount has been tendered, all
Notes tendered, and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 3.09. The Company, the
Depositary or the Paying Agent, as the case may be, shall promptly (but in any
case not later than 5 days after the Purchase Date) mail or deliver to each
tendering Holder an amount equal to the purchase price of the Notes tendered
by such Holder and accepted by the Company for purchase, and the Company shall
promptly issue a new Note, and the Trustee, upon written request from the
Company shall authenticate and mail or deliver such new Note to such Holder,
in a principal amount equal to any unpurchased portion of the Note
surrendered. Any Note not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09,
any purchase pursuant to this Section 3.09 shall be made pursuant to the
provisions of Sections 3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
----------------
The Company shall pay or cause to be paid the principal
of, premium, if any, and interest on the Notes on the dates and in the manner
provided in the Notes. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 11:00 a.m. Eastern Time on the due date
money deposited by the Company in immediately available funds and designated
for payment of and sufficient to pay all principal, premium, if any, and
interest then due. On any Interest Payment Date occurring on or prior to the
date that is two (2) years after the Issue Date, at the discretion of the
Company, the Company may elect to pay interest (and only interest) in
Additional Notes in lieu of the payment of cash in the amount of the interest
due and payable on such Interest Payment Date, by executing and delivering to
the Trustee for authentication, together with an Authentication Order given
not less than 15 days nor more than 60 days prior to such Interest Payment
Date for the authentication and delivery of, Additional Notes in an aggregate
principal amount equal to 133.75% of the amount of such interest otherwise
payable in cash; and the Trustee in accordance with such Authentication Order
shall authenticate and deliver to the Holder of record on the related record
date (as specified on the face of the Notes) such Additional Notes requested
in such Authentication Order, and the due issuance of such Additional Notes
shall constitute full payment of such interest; provided, however, that (a)
the Company shall not issue Additional Notes to pay interest in lieu of cash
on any Interest Payment Date if Excess Cash, minus the aggregate amount of
loans outstanding under the Credit Agreement, for such Interest Payment Date,
less the amount of interest payable in cash on such Interest Payment Date on
the Notes, is at least $15 million; (b) interest shall not so be payable in
Additional Notes in lieu of cash on any Interest Payment Date occurring after
the date two years after the Issue Date; and (c) in lieu of the issuance to
any particular Holder of an Additional Note the principal amount of which
would exceed the largest integral multiple of $1,000 which is less than or
equal to such principal amount, the Company shall pay the amount of such
excess in cash to such Holder.
If the Company elects to pay interest in the form of
Additional Notes as provided in the immediately preceding paragraph, the
Company shall deliver to the Trustee, with sufficient copies for delivery by
the Trustee to each Holder, at least 15 days and no more than 60 days prior to
the relevant Interest Payment Date, notice stating (i) that the Company has
elected to pay interest on such Interest Payment Date in the form of
Additional Notes having an aggregate principal amount equal to 133.75% of the
amount of interest otherwise payable in cash on such Interest Payment Date
(except that, in lieu of the issuance to any particular Holder of an
Additional Note the principal amount of which would exceed the largest
integral multiple of $1,000 which is less than or equal to such principal
amount, the Company shall pay the amount of such excess in cash to such
Holder); (ii) the amount of interest payable in Additional Notes per $1,000
aggregate principal amount of Notes (without giving effect to clause (c) of
the proviso to the last sentence of the immediately preceding paragraph); and
(iii) the Interest Payment Date on which such interest is due.
All Additional Notes shall be issued in the same series
and as part of the same class as the Notes originally issued (or previously
issued as Additional Notes) pursuant to this Indenture, and all Holders of
Additional Notes shall be treated as Holders of Notes for any and all purposes
of any action of Holders or otherwise pursuant to this Indenture except as may
otherwise be required by law. Any such Additional Notes shall be governed by
this Indenture and the terms of each such Additional Note shall be identical
to the terms of the Notes except with respect to, as the case may be, the
designation of such Additional Note (which may (but need not) indicate the
Interest Payment Date of its original issuance), its aggregate principal
amount, its CUSIP number or other required identifications, any required
legends (including with respect to taxation) and the date from which interest
accrues and except as may otherwise be required by law.
The Company shall, to the extent lawful, pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal at the then applicable interest rate on the Notes; it
shall, to the extent lawful, pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest
at the same rate.
Section 4.02. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan,
the City of
New York, an office or agency (which may be an office of the
Trustee or an affiliate of the Trustee, Registrar or co-Registrar) where Notes
may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the Borough of Manhattan, the City of
New York for such purposes.
The Company shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby designates the Corporate Trust Office
of the Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Reports.
-------
Whether or not required by the rules and regulations of
the Commission, so long as any Notes are outstanding, the Company, for so long
as it is permitted to do so, shall furnish to the Holders of Notes (i) all
quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the
Company were required to file such forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report thereon by the Company's
certified independent accountants and (ii) all current reports that would be
required to be filed with the Commission on Form 8-K if the Company were
required to file such reports, in each case, within the time periods specified
in the Commission's rules and regulations. In addition, whether or not
required by the rules and regulations of the Commission, the Company shall
file a copy of all such information and reports with the Commission for public
availability within the time periods specified in the Commission's rules and
regulations (unless the Commission will not accept such a filing) and make
such information available to securities analysts and prospective investors
upon request. The Company shall at all times comply with TIA Section 314(a).
Section 4.04. Compliance Certificate.
----------------------
(a) The Company and each Subsidiary Guarantor shall
deliver to the Trustee, within 90 days after the end of each Fiscal Year, an
Officers' Certificate stating that a review of the activities of the Company
and its Subsidiaries during the preceding Fiscal Year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture and the Security Documents, and further stating, as to each such
Officer signing such certificate, that to the best of his or her knowledge the
Company has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture, the Notes and the Security Documents and is not
in default in the performance or observance of any of the terms, provisions
and conditions of this Indenture, the Notes or the Security Documents (or, if
a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) The Company shall, so long as any of the Notes are
outstanding, deliver to the Trustee, within 5 days after the occurrence of any
Default or Event of Default, an Officers' Certificate specifying such Default
or Event of Default and what action the Company is taking or proposes to take
with respect thereto.
Section 4.05. Taxes.
-----
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material taxes, assessments,
and governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
------------------------------
The Company and each of the Subsidiary Guarantors
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead or in any manner whatsoever claim or take the benefit
or advantage of, any stay, extension or usury law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance
of this Indenture; and the Company and each of the Subsidiary Guarantors (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
Section 4.07. Limitation on Dividends.
-----------------------
The Company shall not, and shall not permit any
Subsidiary, directly or indirectly, to declare or pay any dividend or make any
other payment or distribution on or in respect of the Capital Stock of the
Company or any Subsidiary (including, without limitation, any payment in
connection with any merger or consolidation involving the Company or any
Subsidiary) or similar payment to the direct or indirect holders of the
Capital Stock of the Company or any Subsidiary, except dividends or
distributions payable solely in its Non-Convertible Capital Stock or in
options, warrants or other rights to purchase its Non-Convertible Capital
Stock and dividends or other distributions payable solely to the Company or a
Wholly Owned Subsidiary).
Section 4.08. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not permit any
Subsidiary, directly or indirectly, to:
(1) purchase, redeem or otherwise acquire or
retire for value any Capital Stock of the Company, any
direct or indirect parent of the Company or any
Subsidiary (other than any such Capital Stock owned by
the Company or any Wholly Owned Subsidiary);
(2) purchase, repurchase, redeem, defease or
otherwise acquire or retire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking fund
payment, any Subordinated Obligations (other than
purchase, repurchase or other acquisition of Subordinated
Obligations purchased in anticipation of satisfying a
sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of
acquisition); or
(3) make any Investment in any Person (other
than a Permitted Investment);
(any such purchase, redemption, repurchase, defeasance,
other acquisition, retirement or Investment being herein
referred to as a "Restricted Payment").
So long as no Default or Event of Default has occurred and is continuing or
would be caused thereby, the provisions of the foregoing paragraph shall not
prohibit:
(1) any purchase or redemption of Subordinated
Obligations of the Company or any Subsidiary Guarantor
from Net Available Cash to the extent permitted under
Section 4.11 or 4.16 hereof;
(2) payments in the form of Capital Stock of
the Company to any employee stock ownership plan of the
Company ("ESOP") on behalf of the employees of the
Company or its Subsidiaries; provided, however, that all
such payments by the Company and its Subsidiaries may not
exceed, during any fiscal year, 10% of the aggregate
compensation expense during such fiscal year attributable
to employees of the Company and its Subsidiaries who are
eligible to participate in the ESOP; or
(3) to the extent required by Section
409(h)(l)(B) of the Code and the regulations thereunder,
a payment by the Company to the ESOP or directly to the
participants and beneficiaries of the ESOP to be used to
repurchase shares of Capital Stock of the Company
distributed to the participants and beneficiaries of the
ESOP.
Section 4.09. Limitation on Restrictions on Distributions from Subsidiaries.
-------------------------------------------------------------
The Company shall not, and shall not permit any
Subsidiary to, create or permit to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary to:
(1) pay dividends or make any other
distributions on its Capital Stock or pay any Debt or
other obligation owed to the Company or any other
Subsidiary;
(2) make any loans or advances to the Company
or any other Subsidiary; or
(3) transfer any of its property or assets to
the Company or any other Subsidiary; except:
(A) any encumbrance or restriction pursuant to this
Indenture or pursuant to the issuance of the Notes or any of the
Credit Agreement Loan Documents (as in effect on the Issue Date);
(B) solely with respect to a Subsidiary acquired by the
Company after the Issue Date, any encumbrance or restriction with
respect to a Subsidiary pursuant to an agreement relating to any Debt
Incurred by such Subsidiary on or prior to the date on which such
Subsidiary was acquired by the Company (other than Debt Incurred as
consideration in, or to provide all or any portion of the funds or
credit support utilized to consummate, the transaction or series of
related transactions pursuant to which such Subsidiary became a
Subsidiary or was acquired by the Company) and outstanding on such
date;
(C) any encumbrance or restriction pursuant to an
agreement effecting a Refinancing of Debt Incurred pursuant to an
agreement referred to in clause (A) or (B) above or contained in any
amendment to an agreement referred to in clause (A) or (B) above;
provided, however, that the encumbrances and restrictions contained
in any such Refinancing agreement or amendment are no less favorable
to the Holders than encumbrances and restrictions with respect to
such Subsidiary contained in such agreements,
(D) any such encumbrance or restriction consisting of
customary non-assignment provisions in leases governing leasehold
interests to the extent such provisions restrict the transfer of the
lease or other customary non-assignment provisions in contracts
(other than contracts that constitute Debt) entered into the ordinary
course of business to the extent such provisions restrict the
transfer of the assets subject to such contracts;
(E) in the case of clause (3) above, restrictions
contained in security agreements or mortgages securing Debt of a
Subsidiary to the extent such restrictions restrict the transfer of
the property subject to such security agreements or mortgages;
(F) encumbrances or restrictions imposed by operation of
applicable law; and
(G) any restriction with respect to a Subsidiary imposed
pursuant to an agreement entered into for the sale or disposition of
all or substantially all of the Capital Stock or assets of such
Subsidiary pending the closing of such sale or disposition.
Section 4.10. Limitation on Debt.
------------------
(a) The Company will not, and will not permit any
Subsidiary to, directly or indirectly, Incur any Debt, except:
(1) Debt represented by the Notes and the
related Subsidiary Guarantees;
(2) Debt of the Company owed to and held by a
Wholly Owned Subsidiary; provided, however, that any
subsequent issuance or transfer of any Capital Stock that
results in such Wholly Owned Subsidiary ceasing to be a
Wholly Owned Subsidiary or any transfer of such Debt
(other than to a Wholly Owned Subsidiary) shall be
deemed, in each case, to constitute the issuance of such
Debt by the Company; and
(3) Permitted Debt.
(b) Notwithstanding paragraph (a) the Company and its
Subsidiaries shall not Incur any Debt if the proceeds thereof are used,
directly or indirectly, to repay, prepay, redeem, defease, retire, refund or
refinance any Subordinated Obligations.
Section 4.11. Asset Sales.
-----------
The Company shall not, and shall not permit any
Subsidiary to, directly or indirectly, consummate any Asset Disposition
unless:
(1) the Company or the Subsidiary receives
consideration at the time of such Asset Disposition at
least equal to the fair market value, as determined in
good faith by the Board of Directors (including as to the
value of all noncash consideration), of the shares and
assets subject to such Asset Disposition and at least 85%
of the consideration thereof received by the Company or
such Subsidiary is in the form of cash or cash
equivalents; and
(2) an amount equal to 100% of the Net
Available Cash from such Asset Disposition is applied by
the Company (or such Subsidiary, as the case may be):
(A) first, at the Company's election to the investment by
the Company in assets to replace the assets that were the subject of
such Asset Disposition or an asset that (as determined by the Board
of Directors) will be used in the business of the Company or a Owned
Subsidiary existing on the date of original issuance of the Notes or
in businesses reasonably related thereto, in each case within the
later of one year from the date of such Asset Disposition or the
receipt of such Net Available Cash;
(B) second, to the extent of the balance of such Net
Available Cash after application and in accordance with clause (A),
to make an offer to purchase Notes pursuant to and subject to the
conditions contained in Section 3.09 hereof; and
(C) third, to the extent of the balance of such Net
Available Cash after application in accordance with clauses (A) and
(B) to the acquisition by the Company or any Wholly Owned Subsidiary
of Tangible Property or the prepayment, repayment or purchase of Debt
(other than any Redeemable Stock) of the Company or Debt of any
Wholly Owned Subsidiary (in either case other than Debt owed to the
Company or an Affiliate of the Company), in each case within one year
from the later of the receipt of such Net Available Cash and the date
the offer described in clause (C) above is consummated.
Pending application of Net Available Cash pursuant to
this paragraph, such Net Available Cash (other than any such Net Available
Cash comprised of Credit Agreement Collateral) shall be invested in Temporary
Cash Investments.
For the purposes of this Section 4.11, the following are
deemed to be "cash equivalents":
(1) the express assumption of Debt of the
Company or any Subsidiary (other than the Notes) and the
release of the Company or any Subsidiary from all
liability on such Debt; and
(2) securities received by the Company or any
Subsidiary that are converted by the Company or any
Subsidiary into cash within 60 days of the receipt of
such securities.
In the event of an Asset Disposition that requires the
purchase of the Notes pursuant to clause (2)(B) above, the Company will be
required to purchase Notes tendered pursuant to an offer by the Company for
the Notes at a purchase price of 100% of their principal amount (without
premium) plus accrued but unpaid interest, if any, in accordance with the
procedures (including prorating in the event of oversubscription) set forth in
this Indenture. If the aggregate purchase price of Notes tendered pursuant to
such offer is less than the Net Available Cash allotted to the purchase
thereof, the Company will be required to apply the remaining Net Available
Cash in accordance with clause (2)(C) above. The Company shall not be required
to make such an offer to purchase Notes pursuant to this Section 4.11 if the
Net Available Cash available therefor is less than $10 million (which lesser
amount shall be carried forward for purposes of determining whether such an
offer is required with respect to any subsequent Asset Disposition).
The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to
this Section 4.11. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.11, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under Section 4.11 by virtue of
such conflict and compliance.
Section 4.12. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not permit any of the
Subsidiaries to, except as otherwise expressly permitted herein, do any of the
following (each, an "Affiliate Transaction"):
(a) make any Investment in an Affiliate of the Company
which is not a Subsidiary Guarantor, other than the Investments in Sterling
Chemicals Marketing, Inc. in existence on the Issue Date and listed on
Schedule III;
(b) transfer, sell, lease, assign or otherwise dispose of
any asset to any Affiliate of the Company which is not a Subsidiary Guarantor;
(c) merge into or consolidate with or purchase or acquire
assets from any Affiliate of the Company which is not a Subsidiary Guarantor;
(d) repay any Indebtedness to any Affiliates of the
Company which is not a Subsidiary Guarantor; or
(e) enter into any other transaction, directly or
indirectly, with or for the benefit of any Affiliate of the Company which is
not a Subsidiary Guarantor (including guaranties and assumptions of
obligations of any such Affiliate);
except for (i) transactions in the ordinary course of business on a basis no
less favorable to the Company or no more favorable to such Affiliate as would
be obtained in a comparable arm's-length transaction with a Person not an
Affiliate, (ii) any Restricted Payment permitted to be made or any Permitted
Investment (other than a Permitted Investment described in clause 1, 6 or 9 of
the definition thereof) not prohibited pursuant to Section 4.08 hereof and
(iii) payment of salaries and other compensation to, or the making of loans or
advances to, officers, directors of the Company or any of the Subsidiaries in
the ordinary course of business.
Section 4.13. Liens.
-----
The Company shall not, and shall not permit any of its
Subsidiaries to Incur or become effective any Lien upon any of its property or
assets, now owned or hereafter acquired, other than Permitted Liens.
Section 4.14. Corporate Existence.
-------------------
Subject to Article 5 hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect (1) its corporate existence, and the corporate, partnership or other
existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the
Company or any such Subsidiary and (2) the rights (charter and statutory),
licenses and franchises of the Company and its Subsidiaries; provided,
however, that the Company shall not be required to preserve any such right,
license or franchise, or the corporate, partnership or other existence of any
of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control.
------------------------------------------
(a) Upon the occurrence of a Change of Control, the
Company shall make an offer (a "Change of Control Offer") to each Holder to
repurchase all or, if elected by such Holder, any part selected by such Holder
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest, due on the relevant interest payment date) (the "Change of
Control Payment").
Within 30 days following any Change of Control, the
Company shall mail a notice to each Holder with a copy to the Trustee stating:
(1) that a Change of Control has occurred and
that such Holder has the right to require the Company to
purchase such Holder's Notes at a purchase price in cash
equal to 101% of the principal amount of Notes
repurchased plus accrued and unpaid interest (if any) to
the date of purchase (subject to the right of Holders of
record on the relevant record date to receive interest
due on the relevant interest payment date); (2) the
material circumstances and facts regarding such Change of
Control (including, without limitation, information with
respect to pro forma historical income, cash flow and
capitalization after giving effect to such Change of
Control); (3) the repurchase date, which shall be no
earlier than 30 days nor later than 60 days from the date
such notice is mailed (the "Change of Control Payment
Date"); (4) that any Note not tendered will continue to
accrue interest; (5) that, unless the Company defaults in
the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest after the Change of
Control Payment Date; (6) that Holders electing to have
any Notes purchased pursuant to a Change of Control Offer
will be required to surrender the Notes, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent at
the address specified in the notice prior to the close of
business on the third Business Day preceding the Change
of Control Payment Date; (7) that Holders will be
entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the
second Business Day preceding the Change of Control
Payment Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the
principal amount of Notes delivered for purchase, and a
statement that such Xxxxxx is withdrawing his election to
have the Notes purchased; and (8) that Holders whose
Notes are being purchased only in part will be issued new
Notes equal in principal amount to the unpurchased
portion of the Notes surrendered, which unpurchased
portion must be equal to $1,000 in principal amount or an
integral multiple thereof..
(b) On the Change of Control Payment Date, the Company
shall, to the extent lawful, (1) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (2) deposit
with the Paying Agent an amount equal to the Change of Control Payment in
respect of all Notes or portions thereof so tendered and (3) deliver or cause
to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate stating the aggregate principal amount of Notes or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to each Holder of Notes so tendered payment in an amount equal
to the purchase price for the Notes, and the Trustee shall promptly
authenticate and mail (or cause to be transferred by book entry) to each
Holder a new Note equal in principal amount to any unpurchased portion of the
Notes surrendered by such Holder, if any; provided, that each such new Note
shall be in a principal amount of $1,000 or an integral multiple thereof. The
Company shall publicly announce the results of the Change of Control Offer on
or as soon as practicable after the Change of Control Payment Date.
The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the Exchange Act and any other securities
laws or regulations in connection with the repurchase of Notes pursuant to
this Section 4.15. To the extent that the provisions of any securities laws or
regulations conflict with the provisions of this Section 4.15, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.15 by virtue
of such conflict and compliance.
Section 4.16. Sale of the Texas City Facilities.
---------------------------------
The Company shall not, and shall not permit any
Subsidiary to, directly or indirectly, consummate a sale, lease, transfer or
other disposition (or series of related sales, leases, transfers or other
dispositions) of the Texas City Facilities or the Capital Stock of the Texas
City Facilities Subsidiary (each, a "Sale of the Texas City Facilities"),
except in compliance with the following provisions:
(1) The Net Available Cash or Net Cash
Proceeds, as applicable, from such transaction must be
sufficient at the proposed repurchase date to purchase
all of the Notes at a purchase price in cash equal to
101% of the principal amount thereof, plus accrued and
unpaid interest thereon to the repurchase date, according
to the procedures set forth in Section 4.15; and
(2) An amount equal to any Net Available Cash
or Net Cash Proceeds, as applicable, from the Sale of the
Texas City Facilities shall, concurrently with the
closing of such sale, be deposited with the Collateral
Agent, who will hold such amount pending its application
to satisfy the obligations of the Company to purchase the
Notes. To the extent that funds remain after the purchase
of the Notes, such excess amounts and any interest
thereon, if any, shall be returned to the Company.
Pending such application of such amounts or return of
excess amounts to the Company, the Collateral Agent shall
invest such amounts at the Company's direction in
Temporary Cash Investments, provided that the maturity of
those investments is prior to the repurchase date of the
Notes.
Section 4.17. Limitation on the Sale or Issuance
of Capital Stock of Subsidiaries.
--------------------------------
The Company shall not sell or otherwise dispose of any
shares of Capital Stock of a Subsidiary, and shall not permit any Subsidiary,
directly or indirectly, to issue or sell or otherwise dispose of any shares of
its Capital Stock except:
(1) to the Company or a Wholly Owned
Subsidiary;
(2) if, immediately after giving effect to such
issuance, sale or other disposition, such Subsidiary
remains a Subsidiary; or
(3) if all shares of Capital Stock of such
Subsidiary are sold or otherwise disposed of; provided,
however, that in connection with any sale pursuant to
this clause (3), the Company may retain no more than 10%
of the outstanding Capital Stock of the Subsidiary being
sold as a portion of the purchase price in connection
with such sale. In connection with any such sale or
disposition of Capital Stock, the Company or any such
Subsidiary shall comply with the provisions of Section
4.11, 4.15 or 4.16, as applicable.
Section 4.18. INTENTIONALLY OMITTED.
---------------------
Section 4.19. Additional Subsidiaries
-----------------------
If any Subsidiary is formed or acquired after the date of
this Indenture by the Company or any of its Subsidiaries, the Company will
notify the Trustee in writing thereof not later than the fifth Business Day
after the date on which such Subsidiary is formed or acquired. If (i) any
Subsidiary is formed or acquired after the date of this Indenture by the
Company or any of its Subsidiaries or (ii) there is a breach of any of the
covenants contained in Section 4.21, the Company will (a) cause such new
Subsidiary or the Excluded Subsidiaries to execute and deliver a Subsidiary
Guarantee and deliver an Opinion of Counsel, (b) cause such new Subsidiary to
become a party to, or the Excluded Subsidiaries to become parties to, each
applicable Security Document in the manner provided therein in each case not
later than, in the case of a new Subsidiary, the fifth Business Day after the
date on which such new Subsidiary is formed or acquired, and, in the case of
the Excluded Subsidiaries, the fifth Business Day after the date on which the
Company becomes aware of any such breach, (c) cause such Subsidiary to become
a party to, or the Excluded Subsidiaries to become parties to, and be bound by
the terms of this Indenture and (d) promptly take such actions to create and
perfect Liens on such Subsidiary's or the Excluded Subsidiaries' assets which
are of the same type as the Pledged Collateral to secure the Obligations.
Section 4.20. Capital Expenditures.
--------------------
Other than Required Environmental Capital Expenditures,
the Company shall not permit the aggregate amount of Capital Expenditures made
by the Company and its Subsidiaries in any Fiscal Year to exceed the amount
set forth below opposite such Fiscal Year:
Fiscal Year Amount
----------- ------
2003 $26,125,000
2004 $34,000,000
2005 $34,625,000
2006 $33,875,000
2007 $30,625,000
2008 $28,000,000
2009 $25,000,000
provided, however, that if Capital Expenditures for any Fiscal Year are less
than the amount set forth above for such Fiscal Year, the amount of the
deficiency shall be carried forward and the amount set forth above for the
subsequent Fiscal Year shall be increased by the amount of the deficiency from
the prior Fiscal Year.
Section 4.21. Excluded Subsidiaries
----------------------
(a) The Company shall cause Sterling Canada, Inc. not
to engage in any activity other than (i) collecting account receivables
generated prior to the Issue Date, (ii) distributing the proceeds of such
account receivables to the Company or Superior Propane, Inc. in accordance
with the terms of the Asset and Stock Purchase Agreement, dated as of
November 13, 2002, among the Company, Sterling Canada, Inc., Sterling Pulp
Chemicals US, Inc., Sterling Pulp Chemicals, Inc., Sterling Chemicals
Acquisitions, Inc. and Superior Propane, Inc. and receiving a tax refund
owed to it by the United States of America (the "Tax Refund"), (iii)
distributing the Tax Refund to the Company and (iv) taking only such other
actions as are necessary to effectuate its winding up and dissolution.
(b) The Company shall cause each of Sterling Pulp
Chemicals US, Inc. and Sterling Pulp Chemicals, Inc. not to engage in any
activity other than (i) collecting account receivables generated prior to
the Issue Date, (ii) distributing the proceeds of such account receivables
to the Company or Superior Propane, Inc. in accordance with the terms of
the Asset and Stock Purchase Agreement, dated as of November 13, 2002,
among the Company, Sterling Canada, Inc., Sterling Pulp Chemicals US, Inc.,
Sterling Pulp Chemicals, Inc., Sterling Chemicals Acquisitions, Inc. and
Superior Propane, Inc. and (iii) taking only such other actions as are
necessary to effectuate its winding up and dissolution.
(c) The Company shall dissolve the Excluded Subsidiaries
prior to June 19, 2003.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets.
---------------------------------------
The Company shall not consolidate with or merge with or
into, or convey, transfer or lease, in one transaction or a series of related
transactions, all or substantially all its assets to, any Person unless:
(1) the resulting, surviving or transferee Person (the
"Successor Company") is a Person organized and existing under the laws of the
United States or any State thereof or the District of Columbia and the
Successor Company (if not the Company) expressly assumes by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, all the obligations of the Company under this Indenture and the
Notes;
(2) immediately after giving effect to such transaction
(and treating any Debt which is or becomes an obligation of the Successor
Company or any Subsidiary of the Successor Company as a result of such
transaction as having been Incurred by such Person at the time of such
transaction), no Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction,
the Successor Company has Consolidated Net Worth in an amount which is not
less than the Consolidated Net Worth of the Company immediately prior to such
transaction minus any costs incurred in connection with the transaction; and
(4) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.
Section 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.01
hereof, the successor Person formed by such consolidation or into or with
which the Company is merged or to which such sale, assignment, transfer,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for (so that from and after the date of such consolidation,
merger, sale, assignment, lease, conveyance or other disposition the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor Person and not to the Company), and may exercise every right and
power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Person shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" means:
(1) a default in any payment of interest on any Note when
the same becomes due and payable, and such default continues for a period of
30 days;
(2) a default in the payment of the principal of or
premium on any Note when the same becomes due and payable at its Stated
Maturity, upon redemption, upon declaration, upon required repurchase or
otherwise;
(3) the failure by the Company to comply with its
obligations pursuant to Sections 4.07, 4.08, 4.21 or 5.01 hereof or a default
by a Subsidiary Guarantor under any Subsidiary Guarantee;
(4) the failure by the Company to observe or perform any
of its obligations under Sections 4.11, 4.15 or 4.16 (in each case, other than
a failure to purchase Notes), or under Sections 4.03, 4.09, 4.10, 4.12 or 4.20
of this Indenture for 30 days after receipt by the Company of a written notice
to the Company by the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding;
(5) the failure by the Company to observe or perform any
other covenant, representation, warranty or other agreement in this Indenture
or the Notes or any Security Document for 60 days after notice to the Company
by the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding;
(6) a default under any mortgage, indenture or instrument
(including the Security Documents) under which there may be issued or by which
there may be secured or evidenced any Debt for money borrowed by the Company
or any of its Subsidiaries (or the payment of which is Guaranteed by the
Company or any of its Subsidiaries) whether such Debt or Guarantee now exists,
or is created after the date hereof, which default:
(a) is caused by failure to pay principal of or premium,
if any, or interest on such Debt prior to the expiration of the grace period
provided in such Debt on the date of such default ("Payment Default"); or
(b) results in the acceleration of such Debt prior to its
express maturity; and, in each case, the principal amount of any such Debt,
together with the principal amount of any other such Debt under which there
has been a Payment Default or the maturity of which has been so accelerated,
aggregates $5.0 million or more;
(7) (i) the repudiation by the Company or any Subsidiary
of any of its respective obligations under any of the Security Documents; (ii)
the unenforceability of any of the Security Documents against the Company or
any Subsidiary in any material respect for any reason which, in such case,
shall continue unremedied for 30 days after the earlier of the date on which
(A) a Responsible Officer of the Company becomes aware of such repudiation or
unenforceability or (B) a written notice thereof shall have been given to the
Company by the Trustee or the Holders of a majority in aggregate principal
amount of the Notes then outstanding; or (iii) the loss of the perfection or
priority of any material portion of the Liens granted by the Company or a
Subsidiary pursuant to the Security Documents for any reason (other than as
permitted in this Indenture, the Security Documents or as otherwise agreed to
by the Trustee and Holders of a majority in aggregate principal amount of the
Notes then outstanding);
(8) any final non-appealable judgment or decree not
covered by insurance or as to which the insurance carrier has denied
responsibility for the payment of money in excess of $5.0 million is rendered
against the Company or any Subsidiary and is not discharged and there is a
period of 60 days following such judgment during which such judgment or decree
is not discharged, waived or the execution thereof stayed;
(9) The Company or any of its Subsidiaries, pursuant to
or within the meaning of Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(10) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its Subsidiaries in
an involuntary case;
(ii) appoints a custodian of the Company or any of its Subsidiaries
for all or substantially all of the property of the Company or any of
its Subsidiaries; or
(iii) orders the liquidation of the Company or any of its
Subsidiaries; and the order or decree remains unstayed and in effect
for 60 consecutive days; or
(11) any Subsidiary disavows any of its obligations under
its Guarantee of the Obligations.
Section 6.02. Acceleration.
------------
If any Event of Default (other than an Event of Default
specified in clause (9) or (10) of Section 6.01 hereof) occurs and is
continuing, the Trustee may and, if instructed in writing by the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding, shall
declare all the principal of and accrued but unpaid interest on the Notes to
be due and payable immediately. Upon any such declaration, the Notes shall
become due and payable. If an Event of Default specified in clause (9) or (10)
of Section 6.01 hereof occurs with respect to the Company or any of its
Subsidiaries, the principal of and accrued but unpaid interest on all the
Notes shall ipso facto become and be immediately due and payable immediately
without any declaration or other act on the part of the Trustee or any Holders
of the Notes. The Holders of a majority in aggregate principal amount of the
then outstanding Notes by written notice to the Trustee may on behalf of all
of the Holders rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default (except nonpayment of principal, interest or premium that has become
due solely because of the acceleration) have been cured or waived.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal,
premium, if any, and interest on the Notes or to enforce the performance of
any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any
right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of Default.
All remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
-----------------------
Holders of not less than a majority in aggregate
principal amount of the then outstanding Notes by notice to the Trustee may on
behalf of the Holders of all of the Notes waive an existing Default or Event
of Default and its consequences hereunder, except a continuing Default or
Event of Default in the payment of the principal of, premium, if any, or
interest on, the Notes (including in connection with an offer to purchase)
(provided, however, that the Holders of a majority in aggregate principal
amount of the then outstanding Notes may rescind an acceleration and its
consequences, including any related payment default that resulted from such
acceleration). Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
-------------------
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising
any trust or power conferred on it. However, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture or if, subject to
Section 7.01, the Trustee reasonably determines that such action, if taken,
would be unduly prejudicial to the rights of other Holders of Notes or that
may involve the Trustee in personal liability.
Section 6.06. Limitation on Suits.
-------------------
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(1) such Holder has previously given the Trustee notice
that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount
of the Notes then outstanding have requested the Trustee to pursue the remedy;
(3) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee has not complied with such request within
60 days after the receipt thereof and the offer of security or indemnity; and
(5) Holders of a majority in aggregate principal amount
of the Notes then outstanding have not given the Trustee a direction
inconsistent with such request within such 60-day period. Subject to certain
restrictions, the Holders of a majority in aggregate principal amount of the
Notes then outstanding are given the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee.
A Holder of a Note may not use this Indenture to
prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
Section 6.07. Rights of Holders of Notes to Receive Payment.
---------------------------------------------
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of principal, premium, if
any, and interest on the Note, on or after the respective due dates expressed
in the Note (including in connection with an offer to purchase), or to bring
suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder;
provided that a Holder shall not have the right to institute any such suit for
the enforcement of payment if and to the extent that the institution or
prosecution thereof or the entry of judgment therein would, under applicable
law, result in the surrender, impairment, waiver or loss of the Lien granted
under the Security Documents upon any property subject to such Lien.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default specified in Section 6.01(1) or
(2) occurs and is continuing, the Trustee is authorized to recover judgment in
its own name and as trustee of an express trust against the Company for the
whole amount of principal of, premium, if any, and interest remaining unpaid
on the Notes and interest on overdue principal and, to the extent lawful,
interest and such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders of the Notes allowed in any judicial proceedings
relative to the Company (or any other obligor upon the Notes), its creditors
or its property and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such
claims and any custodian in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof. To the extent
that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this
Article VI, it shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment
of all compensation, expense and liabilities incurred,
and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on
the Notes for principal, premium, if any, and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for
principal, premium, if any, and interest, respectively;
and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section
6.10.
Section 6.11. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken
or omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs of
the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made
by the party litigant. This Section does not apply to a suit by the Trustee, a
suit by a Holder of a Note pursuant to Section 6.07 hereof, or a suit by
Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
Section 7.02. Rights of Trustee.
-----------------
(a) The Trustee may conclusively rely upon any document
reasonably believed by it to be genuine and to have been signed or presented
by the proper Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection
from liability in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it reasonably believes to be
authorized or within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may
become the owner or pledgee of Notes and may otherwise deal with the Company
or any Affiliate of the Company with the same rights it would have if it were
not Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the
Commission for permission to continue as Trustee or resign. Any Agent may do
the same with like rights and duties. The Trustee is also subject to Sections
7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Company's use of the proceeds from the
Notes or any money paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of
the Notes or pursuant to this Indenture other than its certificate of
authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to Holders of Notes
a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal
of, premium, if any, or interest on any Note, the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of the Holders of
the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
------------------------------------------
On or before March 1 of each year beginning with March 1,
2004, and for so long as Notes remain outstanding, the Trustee shall mail to
the Holders of the Notes a brief report dated as of such reporting date that
complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within the twelve months preceding the reporting date, no
report need be transmitted). The Trustee also shall comply with TIA Section
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Company and filed with the Commission
and each stock exchange on which the Notes are listed in accordance with TIA
Section 313(d). The Company shall promptly notify the Trustee when the Notes
are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a Trustee of an express trust. The Company shall reimburse the
Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by it in addition to the compensation for its
services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and
all losses, liabilities or expenses incurred by it arising out of or in
connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of enforcing this Indenture
against the Company (including this Section 7.07) and defending itself against
any claim (whether asserted by the Company or any Holder or any other Person)
or liability in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence or willful misconduct. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder except, solely as it pertains to such
claim, to the extent that the Company may be materially prejudiced by such
failure. The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on all money or
property held or collected by the Trustee, except that held in trust to pay
principal and interest on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(9) or (10) hereof occurs,
the expenses and the compensation for the services (including the fees and
expenses of its agents and counsel) are intended to constitute expenses of
administration under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign at any time and be discharged from
the trust hereby created by so notifying the Company in writing. The Holders
of a majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company
may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or
an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint a successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder who
has been a Holder for at least six months, fails to comply with Section 7.10,
such Holder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
Section 7.09. Successor Trustee by Xxxxxx, etc.
--------------------------------
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee; provided such corporation shall be otherwise qualified and
eligible under this Article.
Section 7.10. Eligibility; Disqualification.
-----------------------------
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States
of America or of any state thereof that is authorized under such laws to
exercise corporate trustee power, that is subject to supervision or
examination by federal or state authorities and that has, or is a direct or
indirect wholly-owned subsidiary of a bank holding company that has, a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition.
This Indenture shall always have a Trustee who satisfies
the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject
to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Company may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officers' Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article
Eight.
Section 8.02. Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.02, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be deemed to
have been discharged from its obligations with respect to all outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). For this purpose, Legal Defeasance means that the Company
shall be deemed to have paid and discharged the entire Debt represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only
for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Notes and this Indenture (and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Notes to receive solely from the trust fund described
in Section 8.04 hereof, and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Notes
when such payments are due, (b) the Company's obligations with respect to such
Notes under Article 2 and Section 4.02 hereof, (c) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and the Company's obligations
in connection therewith and (d) this Article Eight. Subject to compliance with
this Article Eight, the Company may exercise its option under this Section
8.02 notwithstanding the prior exercise of its option under Section 8.03
hereof.
Section 8.03. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 8.01 hereof of
the option applicable to this Section 8.03, the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, be released
from its obligations under the provisions of Sections 4.03, 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.19 and 4.20 hereof and
clause (3) and (4) of Section 5.01 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such Sections, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall
not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.01 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section
8.01 hereof of the option applicable to this Section 8.03 hereof, subject to
the satisfaction of the conditions set forth in Section 8.04 hereof, Sections
6.01(3) through 6.01(8) hereof or Sections 6.01(9) or 6.01(10) (with respect
only to the Subsidiaries) shall not constitute Events of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application
of either Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in United States
dollars, U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants, to pay the principal of, premium, if any,
and interest on the outstanding Notes on the stated date for payment thereof
or on the applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the outstanding Notes will not recognize income, gain or loss for
federal income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof,
the Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the Holders
of the outstanding Notes will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred
and be continuing on the date of such deposit (other than a Default or Event
of Default resulting from the incurrence of Debt all or a portion of the
proceeds of which will be used to defease the Notes pursuant to this Article
Eight concurrently with such incurrence) or insofar as Sections 6.01(9) or
6.01(10) hereof is concerned and pertains to the Company, at any time in the
period ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall
not result in a breach or violation of, or constitute a default under, any
material agreement or instrument (other than this Indenture) to which the
Company or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an
Opinion of Counsel (which may be subject to customary exceptions) to the
effect that on the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law;
(g) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Company; and
(h) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for or relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
---------------------------------------------------
Subject to Section 8.06 hereof, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the cash or U.S.
Government Obligations deposited pursuant to Section 8.04 hereof or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article Eight to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the request of the Company any money or U.S. Government Obligations
held by it as provided in Section 8.04 hereof which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
Section 8.06. Repayment to Company.
--------------------
Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Note and remaining unclaimed for two years
after such principal, and premium, if any, or interest has become due and
payable shall be paid to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note
shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as Trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in the
New York Times and The Wall Street Journal
(national edition), notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such notification or publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
Section 8.07. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any
United States dollars or U.S. Government Obligations in accordance with
Section 8.02 or 8.03 hereof, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.02 or 8.03 hereof until such time
as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may be; provided,
however, that, if the Company makes any payment of principal of, premium, if
any, or interest on any Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
-----------------------------------
Notwithstanding Section 9.02 of this Indenture, the
Company, the Subsidiary Guarantors and the Trustee (or the Collateral Agent or
other representative of the Holders under any Security Document) may amend or
supplement this Indenture, the Notes (including any notation or endorsement
thereon) or any of the Security Documents or Subsidiary Guarantees without the
consent of any Holder of a Note:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
(3) to provide for the assumption of the Company's or a
Subsidiary Guarantor's obligations to the Holders of the Notes by a successor
to the Company or a Subsidiary Guarantor pursuant to Article 5 or Article 11
hereof;
(4) to add to the covenants of the Company and its
Subsidiaries hereunder for the benefit of the Holders of the Notes or to
surrender any right or power conferred upon the Company;
(5) to make any change that would provide any additional
rights or benefits to the Holders of the Notes;
(6) to comply with requirements of the Commission in
order to effect or maintain the qualification of this Indenture under the TIA;
or
(7) to allow any Subsidiary Guarantor to execute a
supplemental indenture with respect to the Notes.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture or Security Document, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee
shall join with the Company and the Subsidiary Guarantors in the execution of
any amended or supplemental indenture or Security Document authorized or
permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee
shall not be obligated to enter into such amended or supplemental indenture or
Security Document that affects its own rights, duties or immunities under this
Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
--------------------------------
Except as provided below in this Section 9.02, the
Company, the Subsidiary Guarantors and the Trustee may amend or supplement
this Indenture (including Section 3.09, 4.11, 4.15 and 4.16 hereof), the Notes
or any of the Security Documents or Subsidiary Guarantees with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if
any, or interest on the Notes, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture, the Notes, any Security Document or the Subsidiary Guarantees may
be waived with the consent of the Holders of a majority in principal amount of
the then outstanding Notes (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Section 2.08
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such
amended or supplemental indenture or Security Document or Subsidiary
Guarantee, and upon the filing with the Trustee of evidence satisfactory to
the Trustee of the consent of the Holders of Notes as aforesaid, and upon
receipt by the Trustee of the documents described in Section 9.06 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental indenture or Security Document or Subsidiary Guarantee unless
such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental indenture or Security Document or Subsidiary
Guarantee.
It shall not be necessary for the consent of the Holders
of Notes under this Section 9.02 to approve the particular form of any
proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this
Section 9.02 or Section 9.01 becomes effective, the Company shall mail to the
Holders of Notes affected thereby a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity
of any such amended or supplemental indenture or Security Document or
Subsidiary Guarantee or waiver. Subject to Sections 6.04 and 6.07 hereof, the
Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture, the Notes or any of the Security Documents or
Subsidiary Guarantee. However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of or premium on Notes
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of
interest, including default interest, on any Note;
(c) reduce the principal of or premium on or extend the
Stated Maturity of any Note;
(d) alter or waive any of the provisions with respect to
the redemption or repurchase of the Notes except as provided above with
respect to Sections 3.09, 4.11, 4.15 and 4.16 hereof;
(e) make any Note payable in money other than that stated
in the Notes;
(f) impair the right of any Holder of the Notes to
receive payment of principal of, premium, if any, on and interest on such
Holder's Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Xxxxxx's Notes;
(g) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest on the Notes (except a rescission
of acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver of the
payment default that resulted from such acceleration);
(h) make any change in Section 6.04 or 6.07 hereof or in
this sentence;
(i) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guarantee or this Indenture, except in
accordance with the terms of this Indenture; or
(j) deprive any of the Holders of the benefit of the
Liens created by the Security Documents except in accordance with the terms of
the Security Documents.
Section 9.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment or supplement to this Indenture or the
Notes shall be set forth in a amended or supplemental indenture that complies
with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a continuing consent by
the Holder of a Note and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Xxxxxx's Note, even if
notation of the consent is not made on any Note. However, any such Holder of a
Note or subsequent Holder of a Note may revoke the consent as to its Note if
the Trustee receives written notice of revocation before the date the waiver,
supplement or amendment becomes effective. An amendment, supplement or waiver
becomes effective in accordance with its terms and thereafter binds every
Holder.
Section 9.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment or supplement changes the terms of a
Note, the Trustee may require the Holder of such Note to deliver such Note to
the Trustee. The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment, supplement or
waiver.
Section 9.06. Trustee to Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amended or supplemental
indenture or Security Document authorized pursuant to this Article 9 if the
amendment, supplement or Security Document does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental indenture or Security Document or Subsidiary
Guarantee unless the Board of Directors authorizes it. In executing any
amended or supplemental indenture or Security Document or Subsidiary
Guarantee, the Trustee shall be entitled to receive and (subject to Section
7.01 hereof) shall be fully protected in relying upon an Officer's Certificate
and an Opinion of Counsel stating that the execution of such amended or
supplemental indenture or Security Document is authorized or permitted by this
Indenture.
ARTICLE 10
COLLATERAL AND SECURITY
Section 10.01. Security Documents.
------------------
The due and punctual payment and performance of the
Obligations shall be secured as provided in the Security Documents which the
Company and all of its Subsidiaries have entered into simultaneously with the
execution of this Indenture. Each Holder of Notes, by its acceptance thereof,
consents and agrees to the terms of the Security Documents (including, without
limitation, the provisions providing for foreclosure and release of Pledged
Collateral) as the same may be in effect or may be amended from time to time
in accordance with its terms and authorizes and directs the Collateral Agent
and the Trustee to enter into the Security Documents and to perform its
obligations and exercise its rights thereunder in accordance therewith. The
Company shall deliver to the Trustee copies of all documents delivered to the
Collateral Agent pursuant to the Security Documents, and shall do or cause to
be done all such acts and things as may be necessary or proper, or as may be
required by the provisions of the Security Documents, to assure and confirm to
the Trustee and the Collateral Agent the security interest in the Pledged
Collateral contemplated hereby, by the Security Documents or any part thereof,
as from time to time constituted, so as to render the same available for the
security and benefit of this Indenture and of the Notes secured hereby,
according to the intent and purposes herein expressed. The Company shall take,
or shall cause its Subsidiaries to take, upon request of the Trustee, any and
all actions reasonably required to cause the Security Documents to create and
maintain, as security for the Obligations, a valid and enforceable perfected
first priority Lien in and on all the Pledged Collateral (subject to Permitted
Liens), in favor of the Collateral Agent for the benefit of the Holders of
Notes, superior to and prior to the rights of all third Persons and subject to
no other Liens other than Permitted Liens.
Section 10.02. Recording and Opinions.
----------------------
(a) The Company shall furnish to the Trustee
simultaneously with the execution and delivery of this Indenture a letter
stating that it is entitled to rely on an Opinion of Counsel stating that in
the opinion of such counsel all action has been taken with respect to the
delivery of all financing statements or other instruments necessary to make
effective the Liens intended to be created by the Security Documents.
(b) The Company shall furnish to the Collateral Agent and
the Trustee on September 30 in each year beginning with September 30, 2003 an
Opinion of Counsel, dated as of such date, either (i) (A) stating that, in the
opinion of such counsel, action has been taken with respect to the recording,
registering, filing, re-recording, re-registering and refiling of all
supplemental indentures, financing statements, continuation statements or
other instruments of further assurance as is necessary to maintain the Lien of
the Security Documents and reciting with respect to the security interests in
the Pledged Collateral the details of such action or referring to prior
Opinions of Counsel in which such details are given, (B) stating that, based
on relevant laws as in effect on the date of such Opinion of Counsel, all
financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully
to preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of Notes and the Collateral
Agent and the Trustee hereunder and under the Security Documents with respect
to the security interests in the Pledged Collateral, or (ii) stating that, in
the opinion of such counsel, no such action is necessary to maintain such Lien
and assignment.
(c) The Company shall otherwise comply with the
provisions of TIA Section 314(b).
Section 10.03. Release of Pledged Collateral.
-----------------------------
(a) Subject to subsections (b), (c) and (d) of this
Section 10.03, Pledged Collateral may be released from the Lien and security
interest created by the Security Documents at any time or from time to time in
accordance with the provisions of the Security Documents or as provided
hereby. In addition, upon the request of the Company pursuant to an Officers'
Certificate certifying that all conditions precedent hereunder have been met
and stating whether or not such release is in connection with an Asset
Disposition or a Sale of the Texas City Facilities (at the sole cost and
expense of the Company) the Collateral Agent shall release (i) Pledged
Collateral that is sold, conveyed or disposed of in compliance with the
provisions of this Indenture; provided, that if such sale, conveyance or
disposition constitutes an Asset Disposition or a Sale of the Texas City
Facilities, the Company shall comply with Section 4.11 or Section 4.16, as
applicable. Upon receipt of such Officers' Certificate, the Collateral Agent
shall execute, deliver or acknowledge any necessary or proper instruments of
termination, satisfaction or release to evidence the release of any Pledged
Collateral permitted to be released pursuant to this Indenture or the Security
Documents.
(b) No Pledged Collateral shall be released from the Lien
and security interest created by the Security Documents pursuant to the
provisions of the Security Documents unless there shall have been delivered to
the Collateral Agent the certificate required by this Section 10.03.
(c) No release of Pledged Collateral pursuant to the
provisions of the Security Documents shall be effective as against the Holders
of Notes if such release shall have been given at any time when a Default or
Event of Default shall have occurred and be continuing and the maturity of the
Notes shall have been accelerated (whether by declaration or otherwise) and
the Trustee shall have delivered a notice of acceleration to the Collateral
Agent.
(d) The release of any Pledged Collateral from the terms
of this Indenture and the Security Documents shall not be deemed to impair the
security under this Indenture in contravention of the provisions hereof if and
to the extent the Pledged Collateral is released pursuant to the terms of the
Security Documents. To the extent applicable, the Company shall cause TIA
Section 313(b), relating to reports, and TIA Section 314(d), relating to the
release of property or securities from the Lien and security interest of the
Security Documents and relating to the substitution therefor of any property
or securities to be subjected to the Lien and security interest of the
Security Documents, to be complied with. Any certificate or opinion required
by TIA Section 314(d) may be made by an Officer of the Company except in cases
where TIA Section 314(d) requires that such certificate or opinion be made by
an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected or approved by the Trustee and the
Collateral Agent in the exercise of reasonable care.
Section 10.04. Certificates of the Company.
---------------------------
The Company shall furnish to the Trustee and the
Collateral Agent, prior to each proposed release of Pledged Collateral
pursuant to the Security Documents, (i) all documents required by TIA Section
314(d) and (ii) an Opinion of Counsel, which may be rendered by internal
counsel to the Company, to the effect that such accompanying documents
constitute all documents required by TIA Section 314(d). The Trustee may, to
the extent permitted by Sections 7.01 and 7.02 hereof, accept as conclusive
evidence of compliance with the foregoing provisions the appropriate
statements contained in such documents and such Opinion of Counsel.
Section 10.05. Certificates of the Trustee.
---------------------------
In the event that the Company wishes to obtain a release
of any Pledged Collateral in accordance with the Security Documents and has
delivered the certificates and documents required by the Security Documents
and Sections 10.02 and 10.03 hereof, the Trustee shall determine whether it
has received all documentation required by TIA Section 314(d) in connection
with such release and, based on such determination and the Opinion of Counsel
delivered pursuant to Section 10.02(b), shall deliver a certificate to the
Collateral Agent setting forth such determination.
Section 10.06. Attornment.
----------
To the extent expressly required under the leases in
existence on the Issue Date, the Trustee, on behalf of the Holders of the
Notes, hereby acknowledges and agrees that the Liens granted pursuant to the
Security Documents are subject to the rights of certain lessees under such
leases (and expressly required thereunder) and will be subject to the rights
of lessees under any leases entered into by the Company or any Subsidiary
Guarantor after the date hereof which are permitted pursuant to this Indenture
(collectively, the "Leases") subject to the express rights contained in the
applicable lease. The rights of the tenants under the leases to the leased
premises shall not be unreasonably affected by the exercise by the Trustee (or
the Collateral Agent or other representative of the Holders under any Security
Document) of any of their rights under this Indenture or any of the Security
Documents, nor shall any such tenant be in any other way deprived of its
rights under the applicable lease except in accordance with the terms of such
lease. In the event that the Trustee (or any Collateral Agent or other
representative of the Holders under any Security Document) succeeds to the
interest of the Company or any Subsidiary Guarantor under a Lease, such Lease
shall not be terminated or affected thereby except as set forth herein or
therein, and any sale of the applicable leased premises by the Trustee (or the
Collateral Agent or other representative of the Holders under any Security
Document) under or pursuant to the judgment of any court in an action to
enforce the remedies provided for in the Indenture, the Notes or any of the
Security Documents shall be made subject to such Lease and the rights of such
tenant expressly set forth thereunder. If the Trustee (or the Collateral Agent
or other representative of the Holders under any Security Document) succeeds
to the interests of the Company or a Subsidiary Guarantor in and to the
applicable leased premises or under such lease or enters into possession of
such leased premises, the Trustee or such Collateral Agent or other
representative and such tenants shall be bound to each other under all of the
express terms, covenants and conditions of such lease, as if the Trustee or
such Collateral Agent or other representative was originally the Company or
such Subsidiary Guarantor as lessor thereunder.
Section 10.07. Authorization of Actions to Be Taken by
the Trustee Under the Security Documents.
----------------------------------------
Subject to the provisions of Section 7.01 and 7.02
hereof, the Trustee may, in its sole discretion and without the consent of the
Holders of Notes, direct, on behalf of the Holders of Notes, the Collateral
Agent to take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Security Documents and (b) collect and receive
any and all amounts payable in respect of the Obligations. The Trustee shall
have power to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Pledged Collateral by any acts that
may be unlawful or in violation of the Security Documents or this Indenture,
and such suits and proceedings as the Trustee may deem expedient to preserve
or protect its interests and the interests of the Holders of Notes in the
Pledged Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial
to the interests of the Holders of Notes or of the Trustee).
Section 10.08. Authorization of Receipt of Funds by the
Trustee Under the Security Documents.
----------------------------------------
The Trustee is authorized to receive any funds for the
benefit of the Holders of Notes distributed under the Security Documents, and
to make further distributions of such funds to the Holders of Notes according
to the provisions of this Indenture.
Section 10.09. Termination of Security Interest.
--------------------------------
Upon the payment in full of all Obligations, or upon
Legal Defeasance, the Trustee shall, at the request of the Company, deliver a
certificate to the Collateral Agent stating that such Obligations have been
paid in full, and instruct the Collateral Agent to release the Liens pursuant
to this Indenture, the Notes and the Security Documents to the extent securing
the Obligations.
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. Subsidiary Guarantees.
---------------------
Subject to this Article 11, each of the Subsidiary
Guarantors hereby, jointly and severally, absolutely, unconditionally and
irrevocably guarantees to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, irrespective of
the validity and enforceability of this Indenture, the Notes or the
obligations of the Company hereunder or thereunder, that: (a) the principal
of, premium, if any, and interest on the Notes will be promptly paid in full
when due, whether on an Interest Payment Date (as defined in the Notes), at
maturity, by acceleration, repurchase, prepayment, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if any, if
lawful, and all other Obligations of the Company will be promptly paid in full
and performed, all in accordance with the terms hereof, the Notes and the
Security Documents; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Subsidiary Guarantors shall
be jointly and severally obligated to pay or perform the same immediately.
Notwithstanding any notice given by the Company pursuant to the second
paragraph of Section 4.01 as to payment of interest on any Interest Payment
Date in Additional Notes, if the Company fails timely to pay such interest,
the Subsidiary Guarantors shall nonetheless be jointly and severally obligated
to pay such interest immediately in cash.
Each Subsidiary Guarantor agrees that this is a guarantee
of payment and not a guarantee of collection.
Each Subsidiary Guarantor hereby agrees that its
obligations with regard to this Subsidiary Guarantee shall be joint and
several, absolute, unconditional and irrevocable, irrespective of the validity
or enforceability of the Notes or the obligations of the Company under this
Indenture, the absence of any action to enforce the same, the recovery of any
judgment against the Company or any other obligor with respect to this
Indenture, the Notes or the Obligations of the Company under this Indenture or
the Notes, any action to enforce the same or any other circumstances (other
than complete performance) which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary Guarantor
further, to the extent permitted by applicable law, irrevocably waives and
relinquishes all claims, rights and remedies accorded by applicable law to
guarantors and agrees, to the extent permitted by applicable law, not to
assert or take advantage of any such claims, rights or remedies, including but
not limited to: (a) any right to require any of the Trustee or the Holders
(each a "Benefited Party"), as a condition of payment or performance by such
Subsidiary Guarantor, to (i) proceed against the Company, any other guarantor
(including any other Subsidiary Guarantor) of the Obligations under this
Indenture and the Notes or any other Person, (ii) proceed against or exhaust
any security held from the Company, any such other guarantor or any other
Person, (iii) proceed against or have resort to any balance of any deposit
account or credit on the books of any Benefited Party in favor of the Company
or any other Person, or (iv) pursue any other remedy in the power of any
Benefited Party whatsoever; (b) any defense arising by reason of the
incapacity, lack of authority or any disability or other defense of the
Company including any defense based on or arising out of the lack of validity
or the unenforceability of the Obligations under this Indenture and the Notes
or any agreement or instrument relating thereto or by reason of the cessation
of the liability of the Company from any cause other than payment in full of
the Obligations under this Indenture and the Notes; (c) any defense based upon
any statute or rule of law which provides that the obligation of a surety must
be neither larger in amount nor in other respects more burdensome than that of
the principal; (d) any defense based upon any Benefited Party's errors or
omissions in the administration of the Obligations under this Indenture and
the Notes, except behavior which amounts to bad faith; (e)(i) any principles
or provisions of law, statutory or otherwise, which are or might be in
conflict with the terms of the Subsidiary Guarantees and any legal or
equitable discharge of such Subsidiary Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting such Subsidiary
Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims and (iv) promptness, diligence and any
requirement that any Benefited Party protect, secure, perfect or insure any
security interest or Lien on any property subject thereto; (f) notices,
demands, presentations, protests, notices of protest, notices of dishonor and
notices of any action or inaction, including acceptance of the Subsidiary
Guarantees, notices of default under this Indenture or the Notes or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Obligations under this Indenture or the Notes or any
agreement related thereto, and notices of any extension of credit to the
Company and any right to consent to any thereof; (g) to the extent permitted
under applicable law, the benefits of any "One Action" rule and (h) any
defenses or benefits that may be derived from or afforded by law which limit
the liability of or exonerate guarantors or sureties, or which may conflict
with the terms of the Subsidiary Guarantees. Each Subsidiary Guarantor hereby
covenants that its Subsidiary Guarantee shall not be discharged except by
complete performance of the obligations contained in the Notes and this
Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Subsidiary Guarantors or any
custodian, trustee, liquidator or other similar official acting in relation to
either the Company or the Subsidiary Guarantors, any amount paid by either the
Company or the Subsidiary Guarantors to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
Each Subsidiary Guarantor agrees that it shall not be
entitled to any right of subrogation in relation to the Holders in respect of
any obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Subsidiary Guarantor further agrees that, as between
the Subsidiary Guarantors, on the one hand, and the Holders and the Trustee,
on the other hand, (x) the maturity of the obligations guaranteed hereby may
be accelerated as provided in Article 6 hereof for the purposes of this
Subsidiary Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article 6 hereof, such obligations (whether or
not due and payable) shall forthwith become due and payable by the Subsidiary
Guarantors for the purpose of this Subsidiary Guarantee. The Subsidiary
Guarantors shall have the right to seek contribution from any non-paying
Subsidiary Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Subsidiary Guarantee.
Section 11.02. Limitation on Subsidiary Guarantor Liability.
--------------------------------------------
Each Subsidiary Guarantor, and by its acceptance of
Notes, each Holder, hereby confirms that it is the intention of all such
parties that the Subsidiary Guarantee of such Subsidiary Guarantor not
constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law,
the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or
any similar federal or state law to the extent applicable to any Subsidiary
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and
the Subsidiary Guarantors hereby irrevocably agree that the obligations of
such Subsidiary Guarantor will, after giving effect to such maximum amount and
all other contingent and fixed liabilities of such Subsidiary Guarantor that
are relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Subsidiary Guarantor in respect of the obligations of such other
Subsidiary Guarantor under this Article 11, result in the obligations of such
Subsidiary Guarantor under its Subsidiary Guarantee not constituting a
fraudulent transfer or conveyance.
Section 11.03. Execution and Delivery of Subsidiary Guarantee.
----------------------------------------------
To evidence its Subsidiary Guarantee set forth in Section
11.01, each Subsidiary Guarantor hereby agrees that a notation of such
Subsidiary Guarantee substantially in the form included in Exhibit B shall be
endorsed by an Officer of such Subsidiary Guarantor on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on
behalf of such Subsidiary Guarantor by its President or one of its Vice
Presidents.
Each Subsidiary Guarantor hereby agrees that its
Subsidiary Guarantee set forth in Section 11.01 shall remain in full force and
effect notwithstanding any failure to endorse on each Note a notation of such
Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or on
the Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which a Subsidiary Guarantee is endorsed, the
Subsidiary Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Subsidiary Guarantee set forth in this Indenture on behalf of the Subsidiary
Guarantors.
Section 11.04. Subsidiary Guarantors May Consolidate, etc., on Certain Terms.
-------------------------------------------------------------
Except as otherwise provided in Section 11.05, no
Subsidiary Guarantor may sell or otherwise dispose of all or substantially all
of its assets to, or consolidate with or merge with or into (whether or not
such Subsidiary Guarantor is the surviving Person) another Person, other than
the Company or another Subsidiary Guarantor, unless immediately after giving
effect to such transaction, no Default or Event of Default exists and the
following conditions have been satisfied:
(a) subject to Section 11.05 hereof, the Person acquiring
the property in any such sale or disposition or the Person formed by or
surviving any such consolidation or merger assumes all the obligations of that
Subsidiary Guarantor under this Indenture and its Subsidiary Guarantee
pursuant to a supplemental indenture and appropriate collateral documents
satisfactory to the Trustee; or
(b) if applicable, the Net Available Cash from such sale
or other disposition is applied in accordance with Section 4.11 hereof; or
(c) if applicable, that transaction is made in accordance
with the terms of Section 4.16 hereof.
In case of any such consolidation, merger, sale or
conveyance (other than pursuant to Section 4.16) and upon the assumption by
the successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the Subsidiary Guarantee
endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Subsidiary
Guarantor, such successor Person shall succeed to and be substituted for the
Subsidiary Guarantor with the same effect as if it had been named herein as a
Subsidiary Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Subsidiary Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Subsidiary Guarantees so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Subsidiary Guarantees theretofore and thereafter issued in accordance with the
terms of this Indenture as though all of such Subsidiary Guarantees had been
issued at the date of the execution hereof.
Except as set forth in Articles 4 and 5 hereof, nothing
contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Subsidiary Guarantor with or into the Company or
another Subsidiary Guarantor, or shall prevent any sale or conveyance of the
property of a Subsidiary Guarantor as an entirety or substantially as an
entirety to the Company or another Subsidiary Guarantor.
Section 11.05. Releases Following Sale of Assets.
---------------------------------
The Subsidiary Guarantee of a Subsidiary Guarantor will
be released:
(1) with respect to any Subsidiary Guarantor other than
the Texas City Facilities Subsidiary, in connection with any sale or other
disposition of all or substantially all of the assets of that Subsidiary
Guarantor (including by way of merger or consolidation) or any sale or other
disposition of all of the Capital Stock of that Subsidiary Guarantor to a
Person that is not (either before or after giving effect to such transaction)
a Subsidiary Guarantor or the Company, provided, that the Company must apply
the Net Available Cash from such sale or other disposition in accordance with
the provisions of Section 4.11 hereof;
(2) with respect to the Texas City Facilities Subsidiary,
in connection with the Sale of the Texas City Facilities, provided, that the
Company must apply the Net Available Cash or the Net Cash Proceeds, as
applicable, from such sale or other disposition in accordance with the
provisions of Section 4.16 hereof;
Upon delivery by the Company to the Trustee of an
Officers' Certificate and an Opinion of Counsel to the effect that such sale
or other disposition was made by the Company in accordance with the provisions
of this Indenture, including without limitation Sections 4.11 and 4.16 hereof,
the Trustee shall execute any documents reasonably required in order to
evidence the release of any Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee.
Any Subsidiary Guarantor not released from its
obligations under its Subsidiary Guarantee shall remain liable for the full
amount of principal of and premium, if any, and interest on the Notes and for
the other Obligations of the Company and the other Subsidiary Guarantors under
the Notes and this Indenture as provided in this Article 11.
ARTICLE 12
HOLDERS' MEETINGS
Section 12.01. Purposes of Meetings.
--------------------
A meeting of the Holders may be called at any time from
time to time pursuant to this Article 12 for any of the following purposes:
(a) to give any notice to the Company or to the Trustee,
or to give any directions to the Trustee, or to consent to the waiving of any
Default hereunder and its consequences, or to take any other action authorized
to be taken by the Holders pursuant to Article 9;
(b) to remove the Trustee and appoint a successor trustee
pursuant to Article 7;
(c) to consent to the execution of an indenture
supplemental hereto pursuant to Section 9.02;
(d) to take any other action authorized to be taken by or
on behalf of the Holders of any specified aggregate principal amount of the
outstanding Notes under any other provision of this Indenture or under
applicable law; and
(e) to take any action required, authorized or permitted
to be taken by the Holders under the Amended and Restated Certificate of
Incorporation of the Company.
Section 12.02. Place of Meetings.
-----------------
Meetings of the Holders may be held at such place or
places as the Trustee or, in case of its failure to act, the Company, shall
from time to time determine.
Section 12.03. Call and Notice of Meetings.
---------------------------
(a) The Trustee may at any time (upon not less than 20 or
more than 90 days' notice) call a meeting of the Holders to be held at such
time and at such place in the City of
New York,
New York or in such other city
as determined by the Trustee pursuant to Section 12.02. Notice of every
meeting of the Holders, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
mailed to each Holder and published in the manner contemplated by Section
13.02.
(b) In case at any time the Company, pursuant to a
resolution of the Board of Directors, or the Holders of at least 10% in
aggregate principal amount of the Notes then outstanding, shall have requested
the Trustee to call a meeting of the Holders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have made the first giving of the notice of such meeting
within 20 days after receipt of such request, then the Company or the Holders
of Notes in the amount above specified may determine the time and the place in
The City of
New York,
New York or in such other city as determined by the
Company or the Holders pursuant to Section 12.02 for such meeting and may call
such meeting to take any action authorized in Section 12.01 by giving notice
thereof as provided in Section 12.03(a).
Section 12.04. Action Without Meeting.
----------------------
Any action required or permitted to be taken by the
Holders may be taken without a meeting if consented to in writing by Holders
of the aggregate principal amount of the Notes then outstanding that would be
necessary to authorize or take such action at a meeting at which all Holders
having a right to vote thereon were present and voted.
Section 12.05. Voting at Meetings.
------------------
To be entitled to vote at any meeting of the Holders, a
Person shall be (i) a Holder or (ii) a Person appointed by an instrument in
writing as proxy for a Holder or Holders by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of the
Holders shall be the Person so entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 12.06. Voting Rights, Conduct and Adjournment.
--------------------------------------
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of the Holders in regard to proof of the holding of
Notes and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Notes
shall be proved in the manner specified in Section 2.03 and the appointment of
any proxy shall be proved in such manner as is deemed appropriate by the
Trustee or by having the signature of the Person executing the proxy witnessed
or guaranteed by any bank, banker or trust company customarily authorized to
certify to the holding of a note such as a Global Note.
(b) At any meeting of the Holders, the presence of
Persons holding or representing Notes in an aggregate principal amount
sufficient under the appropriate provision of this Indenture to take action
upon the business for the transaction of which such meeting was called shall
constitute a quorum. Subject to any required aggregate principal amount of
Notes required for the taking of any action pursuant to Article 9, in no event
shall less than a majority of the votes given by Persons holding or
representing Notes at any meeting of the Holders be sufficient to approve an
action. Any meeting of the Holders duly called pursuant to Section 12.03 may
be adjourned from time to time by vote of the Holders (or proxies for the
Holders) of a majority of the Notes represented at the meeting and entitled to
vote, whether or not a quorum shall be present; and the meeting may be held as
so adjourned without further notice. No action at a meeting of the Holders
shall be effective unless approved by Persons holding or representing Notes in
the aggregate principal amount required by the provision of this Indenture
pursuant to which such action is being taken.
(c) At any meeting of the Holders, each Holder or proxy
shall be entitled to one vote for each $1,000 aggregate principal amount of
outstanding Notes held or represented.
Section 12.07. Revocation of Consent by the Holders.
------------------------------------
At any time prior to (but not after) the evidencing to
the Trustee of the taking of any action at a meeting of the Holders by the
Holders of the percentage in aggregate principal amount of the Notes specified
in this Indenture in connection with such action, any Holder of a Note the
serial number of which is included in the Notes the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
principal corporate trust office and upon proof of holding as provided herein,
revoke such consent so far as concerns such Note. Except as aforesaid, any
such consent given by the Holder of any Note shall be conclusive and binding
upon such Holder and upon all future Holders and owners of such Note and of
any Note issued in exchange therefor, in lieu thereof or upon transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Note. Any action taken by the Holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and
the Holders of all the Notes.
Section 12.08. No Delay of Rights by Meeting.
-----------------------------
Nothing in this Article 12 contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of the
Holders or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to any Holder under any of the provisions
of this Indenture or the Notes.
ARTICLE 13
MISCELLANEOUS
Section 13.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
Section 13.02. Notices.
-------
Any notice or communication by the Company, any
Subsidiary Guarantor or the Trustee to the others is duly given if in writing
and delivered in Person or mailed by first class mail (registered or
certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company and/or any Subsidiary Guarantor:
Sterling Chemicals, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Four Times Square
New York,
New York 10036-6522
Telecopier No.: (000) 000-0000
Attention: Xxxx X. Xxxxxx
If to the Trustee:
National City Bank
Corporate Trust Department
000 X. Xxxxxxxxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxx X. Xxxxx
The Company, any Subsidiary Guarantor or the Trustee, by
notice to the others may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery
to the courier, if sent by overnight air courier guaranteeing next day
delivery.
Any notice or communication to a Holder shall be mailed
by first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given, whether or not
the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 13.03. Communication by Holders of Notes with Other Holders of Notes.
-------------------------------------------------------------
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, any Agent and any other Person shall have the
protection of TIA Section 312(c).
Section 13.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 13.05 hereof) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been satisfied and that such
action is permitted under this Indenture.
Section 13.05. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a
certificate provided pursuant to TIA Section 314(a)(4)) shall comply with the
provisions of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
Section 13.06. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or at
a meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 13.07. No Personal Liability of Directors,
Officers, Employees and Stockholders.
------------------------------------
No past, present or future director, officer, employee,
incorporator or stockholder of the Company or any Subsidiary Guarantor, as
such, shall have any liability for any obligations of the Company or such
Subsidiary Guarantor under the Notes, this Indenture, the Subsidiary
Guarantees or any other Security Document or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder
by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes.
Section 13.08. Governing Law.
-------------
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES, THE SUBSIDIARY GUARANTEES
AND THE SECURITY DOCUMENTS WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
Section 13.09. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.10. Successors.
----------
All agreements of the Company in this Indenture and the
Notes shall bind its permitted successors. All agreements of the Trustee in
this Indenture shall bind its permitted successors. All agreements of each
Subsidiary Guarantor in this Indenture shall bind its permitted successors,
except as otherwise provided in Section 11.05. Except as expressly
contemplated hereby, neither the Company nor any Subsidiary Guarantor shall
assign or otherwise transfer its rights or obligations under this Indenture,
the Notes, the Subsidiary Guarantees or any other Security Documents.
Section 13.11. Severability.
------------
In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 13.12. Counterpart Originals.
---------------------
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
Section 13.13. Table of Contents, Headings, etc.
--------------------------------
The Table of Contents, Cross-Reference Table and Headings
of the Articles and Sections of this Indenture have been inserted for
convenience of reference only, are not to be considered a part of this
Indenture and shall in no way modify or restrict any of the terms or
provisions hereof.
[Signatures on following page]
SIGNATURES
STERLING CHEMICALS, INC.
By:____________________________
Name:
Title:
STERLING CHEMICALS ENERGY, INC.
By:____________________________
Name:
Title:
NATIONAL CITY BANK
By:____________________________
Name:
Title:
EXHIBIT A
FORM OF NOTE
[Back of Note]
10% Senior Secured Notes due 200[7]
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS
MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF
THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Sterling Chemicals, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at
10% per annum from [December, 2002] until maturity. The Company will pay
interest semi-annually in arrears on [June ___] and [December ___ ] of each
year, or if any such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on the Notes will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is
no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the
next succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be [June ___, 2003]. The Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law)
on overdue principal and premium, if any, from time to time on demand at the
rate then in effect; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of
interest (without regard to any applicable grace periods), from time to time
on demand at the same rate to the extent lawful. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the ____________ or ____________ next preceding
the Interest Payment Date, even if such Notes are canceled after such record
date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes
will be payable as to principal and interest at the office or agency of the
Company maintained for such purpose within or without the City and State of
New York, or, at the option of the Company, payment of interest may be made by
check mailed to the Holders at their addresses set forth in the register of
Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of and interest and premium,
if any, on all Global Notes and all other Notes the Holders of which shall
have provided wire transfer instructions to the Company or the Paying Agent;
provided, however, that interest may be paid through the issuance of
Additional Notes as provided in the Indenture. Such payment shall be in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, unless payment is made
through the issuance of Additional Notes as provided in the Indenture.
3. PAYING AGENT AND REGISTRAR. Initially, National City Bank, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE AND SECURITY DOCUMENTS. The Company issued the Notes
under an Indenture dated as of [December ___, 2002] (the "Indenture") among
the Company, the Subsidiary Guarantors and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code xx.xx.
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
The Notes are secured obligations of the Company limited to $___ million in
aggregate principal amount plus the amount of any Additional Notes issued as
provided in the Indenture. The Notes are secured by pledged collateral
pursuant to the Security Documents referred to in the Indenture.
5. OPTIONAL REDEMPTION.
The Notes may be redeemed, in whole or in part, at the election of
the Company at any time on not less than 30 days' prior notice at a redemption
price equal to 100% of the principal amount plus accrued and unpaid interest
to and including the redemption date.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required to
make an offer (a "Change of Control Offer'') to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of each Holder's Notes at a
purchase price equal to 101% of the aggregate principal amount thereof plus
accrued and unpaid interest thereon, if any, to the date of purchase (subject
to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date) (the "Change of Control
Payment"). Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder setting forth the procedures governing the Change
of Control Offer as required by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset
Dispositions, when the aggregate amount of Net Available Cash remaining after
application in accordance with the provisions of Section 4.11 of the Indenture
exceeds $10 million, the Company shall commence an offer to all Holders of
Notes (an "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to
purchase the maximum principal amount of Notes that may be purchased out of
the balance of such Net Available Cash at an offer price in cash in an amount
equal to 100% of the principal amount thereof plus accrued and unpaid interest
thereon, if any, to the date fixed for the closing of such offer, in
accordance with the procedures set forth in the Indenture. To the extent that
the aggregate amount of Notes tendered pursuant to an Asset Sale Offer is less
than the Net Available Cash available, the Company (or such Subsidiary) must
use such deficiency in the manner specified in Section 4.11 of the Indenture.
If the aggregate principal amount of Notes tendered by Holders thereof exceeds
the amount of Net Available Cash available, the Trustee shall select the Notes
to be purchased on a pro rata basis based on the principal amount of the Notes
tendered. Holders of Notes that are the subject of an offer to purchase will
receive an Asset Sale Offer from the Company prior to any related purchase
date and may elect to have such Notes purchased by completing the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Notes.
(c) If the Company or any Subsidiary consummates a Sale of the Texas
Facilities, the Company must apply an amount equal to any Net Available Cash
or Net Cash Proceeds, as applicable, from such transaction to offer to
purchase outstanding Notes at a repurchase price equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest thereon,
if any, to the date of purchase (subject to the right of Holders of record on
the relevant record date to receive interest due on the relevant interest
payment date), according to the procedures set forth in Section 4.15 of the
Indenture. If the aggregate principal amount of Notes tendered in such offer
to repurchase exceeds the amount of any Net Available Cash or Net Cash
Proceeds, as applicable, from such transaction, the Trustee shall select the
Notes to be repurchased on a pro rata basis based upon the principal amount of
Notes tendered.
8. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the redemption date to each Holder
whose Notes are to be redeemed at its registered address. Notes in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date, interest ceases to accrue on Notes
or portions thereof called for redemption, unless the Company defaults in the
payment of the redemption price.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and the Company may require a Holder to pay any taxes and fees required by law
or permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15
days before a selection of Notes to be redeemed or during the period between a
record date and the corresponding Interest Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note shall be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture, the Subsidiary Guarantees, the Notes or any of the Security
Documents may be amended or supplemented with the consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding,
and any existing default or compliance with any provision of the Indenture,
the Subsidiary Guarantees, the Security Documents or the Notes may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the Notes then outstanding. Without the consent of any Holder of a Note, the
Indenture, the Subsidiary Guarantees, the Security Documents or the Notes may
be amended or supplemented to cure any ambiguity, defect or inconsistency, to
provide for uncertificated Notes in addition to or in place of certificated
Notes, to provide for the assumption of the Company's or a Subsidiary
Guarantor's obligations to Holders of the Notes by a successor to the Company
or such Subsidiary Guarantor pursuant to Article 5 or Article 11 of the
Indenture, to add to the covenants of the Company and its Subsidiaries under
the Indenture for the benefit of the Holders of the Notes or to surrender any
right or power conferred upon the Company, to make any change that would
provide any additional rights or benefits to the Holders of the Notes, to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act, or to allow
any Subsidiary Guarantor to execute a supplemental indenture to the Indenture
and an endorsement on the Notes evidencing a Subsidiary Guarantee with respect
to the Notes.
12. DEFAULTS AND REMEDIES. Events of Default are: (i) a default in
any payment of interest on any Note when the same becomes due and payable,
which default continues for a period of 30 days; (ii) a default in payment of
the principal of or premium on any Note when the same becomes due and payable
at its Stated Maturity, upon redemption, upon declaration, upon required
repurchase or otherwise; (iii) the failure by the Company to comply with its
obligations pursuant to Sections 4.07, 4.08 and 5.01 of the Indenture or a
default by a Subsidiary Guarantor under any Subsidiary Guarantee; (iv) failure
by the Company to observe or perform any of its obligations pursuant to
Sections 4.11, 4.15 or 4.16 (in each case, other than a failure to purchase
Notes), or pursuant to Sections 4.03, 4.09, 4.10, 4.12 or 4.20 of the
Indenture for 30 days after receipt by the Company of a written notice sent by
the Trustee or the Holders of at least 25% in aggregate principal amount of
the Notes then outstanding; (v) a failure by the Company to observe or perform
any other covenant, representation, warranty or other agreement in the
Indenture, the Notes or any Security Document for 60 days after notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes then outstanding; (vi) a default under certain other
agreements relating to Debt of the Company which default results in the
acceleration of such Debt prior to its express maturity; (vii) any Event of
Default under and as defined in the indenture for the Company's UC
Subordinated Notes; (viii) a repudiation by the Company or any Subsidiary of
any of its obligations under the Security Documents or the unenforceability of
any of the Security Documents against the Company or any Subsidiary in any
material respect for any reason which, in each case, shall continue unremedied
for 30 days after the earlier of the date on which (A) a Responsible Officer
of the Company becomes aware of such failure or (B) a written notice thereof
shall have been given to the Company by the Trustee or the Holders of at least
25% in aggregate principal amount of the Notes then outstanding or the loss of
the perfection or priority of any material portion of the Liens granted by the
Company or a Subsidiary pursuant to the Security Documents for any reason;
(ix) certain final judgments for the payment of money that remain undischarged
for a period of 60 days; (x) certain events of bankruptcy or insolvency with
respect to the Company or any of its Subsidiaries; and (xi) a disavowal by any
Subsidiary of its obligations under its Subsidiary Guarantee. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25%
in aggregate principal amount of the then outstanding Notes may declare all
the Notes to be due and payable. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of bankruptcy or insolvency,
all outstanding Notes will become due and payable without further action or
notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
aggregate principal amount of the Notes then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of the Notes notice of any continuing Default or Event of Default
(except a Default or Event of Default relating to the payment of principal or
interest) if it determines that withholding notice is in their interest. The
Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default or Event of Default and its consequences
under the Indenture except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture
or for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform
Gifts to Minors Act).
17. CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Notes or as contained in an y notice of redemption and reliance may be
placed only on the other identification numbers placed thereon.
18. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS INDENTURE AND THE NOTES, WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Sterling Chemicals, Inc.
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:__________________________________
(Insert assignee's legal name)
_______________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: _________________________
Your Signature:____________________________
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.11, 4.15 or 4.16 of the Indenture, check the appropriate
box below:
|_| Section 4.11 |_| Section 4.15
|_| Section 4.16
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.11, 4.15 or 4.16 of the Indenture, state the
amount you elect to have purchased:
$_____________________
Date: _________________________
Your Signature:____________________________
(Sign exactly as your name appears
on the face of this Note)
Tax Identification No._____________________
Signature Guarantee*: ___________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Amount of decrease Amount of Principal Amount
in Principal increase in of Signature of
Amount Principal amount this Global Note authorized officer of
of of following such Trustee or Note
Date of Exchange this Global Note this Global Note decrease (or increase) Custodian
---------------- ---------------- ---------------- ---------------------- --------------------
--------
* This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF NOTATION OF GUARANTEE
For value received, each Subsidiary Guarantor (which term
includes any successor Person under the Indenture), jointly and severally,
absolutely, unconditionally and irrevocably guarantees, to the extent set
forth in the Indenture and subject to the provisions in the Indenture, dated
December 19, 2002 (the "Indenture"), among Sterling Chemicals, Inc., the
Subsidiary Guarantors listed on Schedule I thereto and National City Bank, as
trustee (the "Trustee") that: (a) the principal of, premium, if any, and
interest (including interest accruing at the rate provided for in the
documents evidencing the Notes (as defined in the Indenture) after the
commencement of any proceedings under any Bankruptcy Law (as defined in the
Indenture), whether or not an allowed claim in such proceeding ("Post-Petition
Interest")) on the Notes will be promptly paid when due, whether at maturity,
by acceleration, repurchase, prepayment, redemption or otherwise, and interest
on the overdue principal and premium, to the extent permitted by law, and all
other Obligations (as defined in the Indenture) will be promptly paid and
performed, all in accordance with the terms of the Indenture, the Notes and
the Security Documents (as defined in the Indenture) and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, that the same will be promptly paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. The obligations of the Subsidiary
Guarantors to the Holders of Notes and to the Trustee pursuant to the
Subsidiary Guarantee and the Indenture are expressly set forth in Article 11
of the Indenture and reference is hereby made to the Indenture for the precise
terms of the Subsidiary Guarantee. Each Holder of a Note, by accepting the
same, agrees to and shall be bound by such provisions.
[NAME OF SUBSIDIARY GUARANTOR]
By:___________________________
Name:
Title:
Schedule I
Schedule II
Schedule III
1,000 shares represented by Certificate No. 3 (350 shares) and Certificate
No. 4 (650 shares)
